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1985 DIGILAW 1157 (ALL)

Baboo @ Abdul Rashid v. Bano

1985-12-03

V.K.KHANNA

body1985
JUDGMENT V.K. Khanna, J. - This is an application under Section 482 Criminal Procedure Code praying for quashing the order dated 18-5-79 granting maintenance to the respondent as also the order (Annexure-5) as confirmed by the learned Sessions Judge by his order dated 17-7-1981 in Criminal Revision No. 10 of 1980 and Criminal Revision No. 22 of 1980. 2. Brief facts for the purposes of deciding the present application are that the opposite party Shrimati Bano filed an application under Section 125 Criminal Procedure Code for granting of maintenance against the applicant. A compromise was filed in the aforesaid application and on that basis the application under Section 125 Criminal Procedure Code was decided by the Magistrate. As the applicant failed to pay the maintenance in pursuance of maintenance order granted, the opposite party moved an application for realising the maintenance amount. It is at this stage that the applicant filed an application for setting aside the order granting maintenance on the ground that the compromise was obtained by playing fraud on the applicant. The aforesaid application has been rejected. Feeling aggrieved by the order granting the maintenance and rejecting the application for setting aside the order granting maintenance, the applicant preferred two revisions which have been disposed of by the Sessions Judge by his two orders dated 17-7-1981. 3. Learned Counsel for the applicant in this application has urged that the two orders passed by the Sessions Judge on 17-7-1981 are liable to be quashed as the counsel for the applicant before the Judgment was signed had moved an application bringing facts to the notice of the Sessions Judge as to why the applicant's counsel could not be present at the time when the revisions were taken up for hearing. The Sessions Judge, accordingly to the learned counsel for the applicant has however, rejected the application on the ground that he had dictated the Judgment in those revisions. 4. I have also heard the learned Counsel appearing for the contesting opposite party. It has not been disputed that the application by the learned Counsel for the applicant before the Sessions Judge was moved before the Judgment in the two revisions were signed. 4. I have also heard the learned Counsel appearing for the contesting opposite party. It has not been disputed that the application by the learned Counsel for the applicant before the Sessions Judge was moved before the Judgment in the two revisions were signed. A bare perusal of the order rejecting the application moved by the learned Counsel for the applicant shows that it has not been rejected on the ground that no sufficient cause was disclosed in the application for not appearing at the time when the revisions were called for hearing. The Sessions Judge, admittedly had no power hear the applicant in case the Judgment had been signed as that would have amounted to reviewing his order. However it could not be said that the Sessions Judge had no power to hear the applicant before the judgment had been signed. In my opinion, therefore, the Sessions Judge was wrong in not hearing the applicant when the application had been moved before the judgment had been signed on the same date. The two orders of the Sessions Judge dated 17-7-1981 are, therefore liable to be quashed. The Sessions Judge will hear the two Criminal Revisions Nos. 10 of 1980 and 22 of 1980 afresh in accordance with law after giving opportunity to the parties. 5. Before parting it may be made clear that the order granting maintenance passed on 18-5-79 will, however, remain operative till the revision is finally disposed of and the applicant will be liable to pay maintenance under that order. 6. For the reasons stated above, the present application is allowed. The two orders passed by the Sessions Judge dated 17-7-1981 in Criminal Revision No. 10 of 1980 and 22 of 1980 are quashed. The Sessions Judge will hear the two criminal revisions afresh in accordance with law after giving opportunity to the parties. A certified copy of this order shall be given to the learned Counsel for the parties on payment of usual charges within 3 days. The Sessions Judge will now try to dispose of the revision at an early date. The stay order granted by this Court is discharged.