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2004 DIGILAW 675 (PNJ)

Pal Singh v. Paramjit

2004-07-07

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Pal Singh petitioner herein has assailed the impugned order dated 21.10.1992 passed by Judicial Magistrate Ist Class, Nabha vide which the application moved by him for setting aside the ex-parte order dated 16.10.1991 vide which the present three respondents, namely Paramjit (minor), Gurjit Kaur (minor) and wife of the petitioner Smt. Pal Kaur were awarded Rs. 700/- per month as maintenance under Section 125 Criminal Procedure Code 2. The learned counsel for the petitioner has not attached the order dated 16.10.1991 vide which the maintenance was granted to respondents but learned counsel for both the sides make statement at the bar that the wife of the petitioner was granted Rs. 300/- per month whereas Paramjit and Gurjit Kaur (minors) were granted Rs. 200/- per month each from the date of application. 3. Vide order dated 12.11.1992, recovery of maintenance amount by way of arrest was stayed till further orders. 4. At the very outset Mr. Lalit Sharma, appearing for the respondents has submitted at bar that the petitioner has not deposited any amount before the trial Court till date and the execution proceedings are pending against him. The learned counsel for the petitioner submits that he has written many letters to the petitioner but to no effect. 5. The learned counsel for the petitioner submits that no notice was ever served upon the petitioner regarding the proceedings under Section 125 Criminal Procedure Code filed by the respondents against him and he came to know about the ex-parte order dated 16.10.1991 on 3.2.1992 when the Process Server had visited the house of the petitioner for effecting attachment in the execution proceedings and he immediately thereafter moved an application before the concerned court for setting aside the impugned ex-parte order. He then contends that in order to prove the impugned issue, the petitioner had examined himself, his father Gurdev Singh and one Natha Singh Lambardar but the learned Magistrate had not taken into account the said evidence and instead in para No. 8 of the impugned judgment has given importance to the statement of AW2 Natha Singh Lambardar in which he has stated that he knew that there was a litigation going on between the parties for the last 2/3 years. The learned counsel submits that the finding of the learned trial court that when the Lambardar of the village knew about the litigation, it is not believable that the parties to the litigation would remain ignorant, is unwarranted and as such the impugned order date 21.10.1992 deserves to be set aside. He then contends that atleast one opportunity should be granted to the petitioner to make out his case before the concerned Court to put up his case before the trial Court before he is fastened with any liability. 6. Refuting the arguments advanced by learned counsel for the petitioner, the learned counsel for the respondents submits that the petitioner has not deposited any amount till date before the Executing Court and that for the last many years the whereabouts of the petitioner are also not known. He then contends that the petitioner should not be afforded any opportunity till he deposits the whole of the arrears of maintenance upto date before the trial/executing Court. 7. After hearing both the sides at length, I am of the view that in case the petitioner deposits the whole of the amount of maintenance awarded to the respondents before the trial Court now, the application filed by the respondents for the grant of maintenance shall be disposed of on merits afresh after giving an opportunity to the petitioner. In case the amount of maintenance awarded by the trial Court is not deposited by the petitioner, the present revision petition shall be deemed to have dismissed. However, it is made clear that in the event of deposit of the amount of maintenance awarded by the trial Court from the date of application, the said amount shall be termed as interim maintenance subject to the final disposal of the application on merits. Ordered accordingly. 8. Parties, through their counsel, are directed to appear before the trial Court on 16.8.2004 on which date the concerned Court would grant another 15 days to the petitioner to deposit the whole of the amount of maintenance already awarded. 9. The present petition is disposed of in the light of aforesaid terms. Order accordingly.