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2000 DIGILAW 399 (ORI)

V. KRISHNA RAO v. V. PARVARI

2000-08-08

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - Heard Sri P.K. Padhi Learned Counsel for the petitioner and Shri B.S. Misra Learned Counsel appearing for the opposite party. Both the revisions arising out of the same dispute between the parties being relating to a proceeding u/s 125. Cr.P.C. as agreed upon by the parties, is heard and disposed of analogously as per the following judgment which shall abide the result in both the Criminal Revisions. 2. The undisputed fact involved in the case as projected before this Court is that the petitioner (husband) and the opposite party (wife) entered into a marital tic on 15.2.1989. The relationship with cordiality could not last longer and in 1990 itself they started living separately and litigations cropped up between them. The opposite party filed Criminal Misc. Case No. l5 of 1991 u/s 125, Cr.P.C. in the Court of S.D.J.M, Bhubaneswar which was ultimately disposed of as per conciliation and compromise in the Lok Adalat wherein the parties being advised agreed to live together. That decision to live Together by the spouse on 24.11.1991 continued only for about a week. Therefore the opposite party again filed a proceeding u/s 125, Cr.P.C. in the court of S.D.J.M.. Bhubaneswar which was registered as Criminal Misc. Case No. 125 of 1991. On 11.11.1993 ex parte order was passed granting monthly maintenance @ Rs. 400/- (four hundred). Thereafter petitioner filed Crl. Misc. Case No. 28/94 in the court of S.D.J.M., Bhubaneswar, obviously u/s. 126. Cr.P.C. with the prayer to set aside the ex parte order. In that proceeding, on 10.7.95 a settlement was made and petition for compromise was filed as per which the wife was to relinquish all her claim for monthly maintenance as against payment of a sum of Rs. 30.000/- (thirty thousands) and out of the same on that date a sum of Rs. 25.000/- was paid in Court. Thereafter, on a later date when the petitioner offered the remaining Rs. 5.000/-. as alleged by the petitioner, the opposite party refused to receive the same and on 3.11.1995 filed an application to recall the order of compromise dated 10.7.1995. That application was rejected by learned S.D.J.M. on 27.5.96. Learned Sessions Judge, Khurda at Bhubaneswar in Criminal Revision No. 2/22 of 1996-97 set aside that order and remanded the matter for fresh consideration in accordance with law. That application was rejected by learned S.D.J.M. on 27.5.96. Learned Sessions Judge, Khurda at Bhubaneswar in Criminal Revision No. 2/22 of 1996-97 set aside that order and remanded the matter for fresh consideration in accordance with law. That order of the Sessions Judge is under challenge in Criminal Revision No. 393 of 1997. 3. As per order of the Sessions Judge after receipt of the case on remand, learned S.D. J.M. on 7,8.97 heard and allowed the application dated 3.11.95 filed by the opposite party and recalled the order of compromise dated 10.7.95, As against that order petitioner has preferred Criminal Revision No. 392 of 1997. A few other facts which are stated by the parties are found not relevant to be noted here because of the limited nature of the dispute which is required to be adjudicated in view of the argument advanced. 4. Learned counsel for the petitioner on a reference to the ratio in the case of Benudhar Tanty Vs. Sunabati alias Nalini Dei, concedes that because of the settled position of law a compromise cannot be effected in the manner it was done in the present case and therefore petitioner does not argue on merit of both the revisions but as his application u/s 126. Cr.P.C. was not heard and decided on merit and disposed of on the basis of a compromise between the parties, the petitioner should be given an opportunity to contest the application u/s. 126. Cr.P.C. vide Crl. Misc. Case No. 28/94. Learned counsel for the opposite party does not agree to the aforesaid submission on the ground that opposite party is unnecessarily dragged to the court for years and there has been willful default on the part of the petitioner in not paying the maintenance. 5. After making a due consideration of the aforesaid contention of both the parties this Court is inclined to allow the prayer of the petitioner inasmuch as because of the compromise which was entered into between the parties on 10.7.1995 not only petitioner had to pay a sum of Rs. 25.000/- in cash but also the application u/s. 126, Cr.P.C. was not taken up for consideration on merit. 25.000/- in cash but also the application u/s. 126, Cr.P.C. was not taken up for consideration on merit. After lapse of time when the wife changed her mind to not to adhere to the compromise the right and interest of the petitioner which he had on the date of the compromise, should not go wasted when he asserts to exercise the same. Apart from that the proceeding u/s. 126, Cr.P.C. came to a close without due adjudication because of the compromise made by the parties. When one of the parties to the compromise has got it rescinded on technical ground, the proceeding u/s 126, Cr.P.C. should be restored to the file at the stage in which it was on the date of such compromise because the petitioner in that proceeding u/s 126 is not responsible for recalling the order of compromise. Under such circumstances, this Court directs that the Criminal Misc. Case No. 28 of 1994 u/s. 126. Cr.P.C. be restored to file as it was before compromise on 10.7.95 and farther proceeding of that case be taken up in accordance with law. It may be made clear that the application u/s. 126, Cr.P.C. be considered on its own merit on which this Court expresses no opinion. Since both the parties have expressed their anxiety about oldness of the litigation and desire for early disposal, it is directed that both the parties shall appear before the S.D.J.M" Bhubaneswar in the said proceeding on 15th September. 2000. Neither party shall be entitled to fresh or further notice in that respect from the court of S.D. J.M. and the default may be treated as default in appearance in the proceeding itself and consequential order may be passed accordingly. On 15th of September. 2000 keeping in view appearance of the parties or either of them learned S.D. J.M. shall pass appropriate Order and proceed with the proceeding in accordance with the procedure as provided under the law. Learned S.D. J.M. shall make an endeavor to dispose of the litigation expeditiously and in that respect he may guard against liberal adjournment and piecemeal hearing. In other words, he shall scrupulously follow the provision in section 309. Cr.P.C. Registry is directed to send back the L.C.R. with copy of this judgment to the court below immediately.