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2010 DIGILAW 595 (ALL)

G. S. Poply v. State of U. P. and Others

2010-02-15

SURENDRA SINGH

body2010
The present 482 Cr.P.C. petition has been filed for quashing the impugned order dated 5.10.2009 and the order dated 16.12.2009 passed by Additional Chief Judicial Magistrate,Court No.2, Ghaziabad in Complaint Case No.91 of 2009 (Smt. Darshana Versus G.S. Poply). 2. It is contended by learned counsel for the applicant that opposite party no.3 has filed a petition for divorce in the year 1983 being Original Suit No.349 of 1983 before the Civil Judge, Ghaziabad which was finally decided by the order dated 21.1.1985 declaring the marriage between the applicant and respondent no.3 as null and void. Against the said order, respondent no.3 preferred an appeal before the Additional District Judge, Ghaziabad but it is argued that said appeal was kept pending for disposal by respondent no.3 for 21 years taking advantage of the fact that respondent no.3 was a practising lawyer at District Court, Ghaziabad. Constrained, it is further argued that vide order dated 8.4.2006, Special Leave Petition (Civil) No.551 of 2005, Darshana Versus G.S. Poply was decided by the Hon'ble Apex Court with the direction that the pending appeal before the Additional District Judge, Ghaziabad be decided at the earliest but it is contended that even in compliance of such direction given by Hon'ble Apex Court the matter was sent back to the trial court vide order dated 23.7.2006 by the appellate court. Thereafter it is contended that respondent no.3 withdrew her suit for divorce vide order dated 5.10.2006. It is argued by the counsel for the applicant that the respondent no., 3 is an established lawyer at District Court Ghaziabad having sufficient income and she is also getting Rs.5,000/- per month under the proceedings of Section 125 Cr.P.C. from 22.2.2002 and since then the applicant is regularly paying Rs.5000/- per month to her. It is further contended that in spite of the fact that the applicant as well as respondent no.3 have been living out of matrimony for last 24 years, the opposite party no.3 initiated proceedings under Section 12 of the Protection of Women from Domestic Violence Act without applying or adhering to the procedure as laid down in the said Act, though in view of Section 26(3) of the Act it was incumbent upon a person/ opposite party no.3 to have disclosed other proceedings and relief sought thereupon by her in the application moved under Section 12 of the Act. It is further argued that the applicant appeared before the court before whom such proceedings were drawn but only on one date the lawyer of the applicant had gone out of station and the applicant could not appear before court on account of personal reasons i.e.on 5.10.2009 on which date the trial court passed order for proceeding ex parte. Thereafter the application was moved on behalf of the applicant on 26.10.2009 for recalling the order dated 5.10.2009 for proceeding ex parte to which opposite party no.3 filed her objection but the said application of the applicant has been rejected. It is argued that applicant continued to appear before the trial court on each and every date and he has filed order-sheet to authenticate aforesaid averments made by him. Only on account of his absence on one date, the court below has passed impugned order which is in total disregard to the well settled principles of law as laid down by this Court as well as Hon'ble Apex Court in which it has been held that ordinarily the matter should be decided on merits and not on technicalities. In the present case, on the facts and circumstances as enumerated in the petition, it is contended that it was a case where the opportunity ought to have been granted to the applicant to put forth his case as he has been made to suffer at the behest of opposite party no.3 for as long as 24 years. 3. I have heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record including the order impugned in this petition. 4. Issue notice to opposite party no.3 returnable within four weeks. 5. Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Opposite party no.3 may also file counter affidavit within the same period. Rejoinder affidavit be filed within two weeks thereafter. 6. List this case immediately after expiry of aforesaid period. 7. Till the next date of listing, further proceeding in the aforesaid case shall remain in abeyance.