1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CRIMINAL MISC. PETITION NO.961/2010 (Surja Ram Vs. Ram Pyari & Ors.) Date of Order : 04.08.2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. M.K. Garg, for the petitioner. Mr. Anil Joshi, Public Prosecutor. Mr. D.S. Dev, for respondents. Heard learned counsel for the parties. In this misc. petition filed under Section 482 Cr.P.C., the petitioner is challenging the order dated 30.6.2010 passed by Addl. Sessions Judge, Anupgarh in Criminal Revision Petition No.62/10 whereby the revision petition filed by the petitioner was dismissed and the revisional Court affirmed the order dated 16.02.10 and 09.08.2005 passed by Addl. Chief Judicial Magistrate, Anupgarh in Criminal case No.103/03 whereby learned trial Court proceeded ex-parte in the matter and passed award of maintenance against the petitioner ex-parte. It is contended by learned counsel for the petitioner that admittedly due to non-appearance of the petitioner before 2 the trial Court, ex-parte order was made by the trial Court on 09.08.2005. On that date, the matter was fixed for leading evidence by the petitioner but the advocate appearing on behalf of the petitioner pleaded no instructions, therefore, learned trial Court proceeded ex-parte and no evidence was adduced by the petitioner. The petitioner did not appear on 09.08.2005 before the trial Court due to certain facts taken place in the Panchayat between the parties. The revisional Court did not consider those facts for the purpose of adjudicating the matter afresh by the trial Court, therefore, it is prayed that in the interest of justice while quashing the orders of trial Court, which were passed in absence of the petitioner as well as the order of revisional Court, the matter may be remanded to the trial Court and trial Court may be directed to grant an opportunity to the petitioner to lead his evidence and decide the matter afresh. Per contra, learned counsel appearing on behalf of non-petitioners submits that all the ground taken by the petitioner for non-appearance before the trial Court are not tenable because admittedly till today there is no legal divorce decree in existence. The non-petitioner No.1 Ram Pyari is still wife of the petitioner and she is entitled for maintenance. Further, it is contended that two children of the petitioner are residing with her and for their maintenance, the petitioner is 3 under legal obligation to pay maintenance as ordered by the trial Court. I have considered the rival submission made by both the parties and perused the orders impugned passed by both the Courts below. Admittedly, the trial Court passed the order of maintenance in absence of the petitioner because his counsel pleaded no instructions. Now, it is prayed by the petitioner that while quashing orders impugned an opportunity to lead his evidence may be granted and trial Court may be directed to decide the matter afresh. I see substance in the arguments advanced by learned counsel for the petitioner because the case was decided in absence of the petitioner without providing opportunity to lead evidence because his counsel pleaded no instructions on 09.08.2005. In this view of the matter, I deem it just and proper to quash the orders dated 09.08.2005 and 16.2.2010 passed by Addl. Chief Judicial Magistrate, Anupgarh as well as the order dated 30.6.2010 passed by revisional Court and the matter is hereby remitted to the trial Court for deciding afresh after providing opportunity of hearing to the petitioner. Further, it is made clear that the petitioner will pay interim maintenance to the children which is Rs.800/- per month till disposal of the matter by 4 the trial Court afresh. The amount which is paid by the petitioner may be adjusted at the time of passing final order. It is further directed that the trial Court shall decide the matter afresh preferably within a period of three months. Both the parties are directed to appear before the trial Court on 26.8.2010. Accordingly, this misc. petition is allowed in above terms. (GOPAL KRISHAN VYAS), J arun