Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 678 (JHR)

Md. Rustam, s/o Md. Siraj v. Tabbassum Naz, w/o Md. Rustam

2016-04-22

ANANDA SEN

body2016
ORDER : Ananda Sen, J. - The petitioner being aggrieved by order dated 15.6.2015 passed by Principal Judge, Family Court, Giridih, in M.Case No.323/2011 approached this Hon'ble Court. 2. The petitioner is the husband, who is contesting the claim under Section 125 Cr.P.C. The Claim case under Section 125 Cr. P.C. was filed sometime in the year 2011. It is submitted that the claimant examined three witnesses on 8.4.2015, and on the same day after recording their evidence, they were discharged. On 5.5.2015, the date was fixed for adducing evidence on behalf of the opposite party-husband. On 15.5.2015, the petition was filed by the husband stating therein that he does not want to lead the evidence on that date as both the parties are ready to compromise the matter. The case was again fixed for 16.5.2015. On 16.5.2015, a similar petition was filed by the husband mentioning that he does not want to adduce the evidence on 16.5.2015 because the parties are ready to compromise the case. The court below on 16.5.2015, on the said petition, closed the evidence of the opposite party. The opposite party thereafter on 15.6.2015 filed an application to recall the order dated 16.5.2015 on the ground that he wants to lead evidence because the compromise failed. 3. The learned court below rejected his application by the impugned order dated 15.6.2015 by holding that on the prayer of the opposite party-husband, the evidence been closed on 16.5.2015 and as such the said order cannot be recalled. The learned counsel for the petitioner submits that the order dated 15.6.2015 is absolutely bad and deprives the petitioner to lead evidence. Further he argues that at no point of time the petitioner prayed for closing the evidence and thus order dated 15.6.2015 is erroneous. On the aforementioned fact the petitioner prays to set aside the order dated 15.6.2015. 4. The opposite party on being noticed appears and opposes the prayer and submits that the petitioner want to delay the proceeding as such, the learned court below rightly passed the order dated 15.6.2015. 5. Heard learned counsel for the parties. 6. I have gone through the record and the order dated 16.5.2015 and 15.6.2015. 7. On 16.5.2015 the petitioner prayed that since the matter can be compromised he does not want to lead the evidence on that date; reference be had at page no.10 of the application. 5. Heard learned counsel for the parties. 6. I have gone through the record and the order dated 16.5.2015 and 15.6.2015. 7. On 16.5.2015 the petitioner prayed that since the matter can be compromised he does not want to lead the evidence on that date; reference be had at page no.10 of the application. In paragraph 2, the petitioner categorically stated that he does not want to adduce the evidence on that day. No where in the said petition the petitioner made any submission which can remotely suggest that he prayed to close his evidence. Further from the order dated 16.5.2015 it is clear that the claimant was also present. The claimant neither did not oppose the prayer nor refuted the submission that there is a chance of compromise. That being the fact, the learned court below could not have closed the evidence of the opposite party/petitioner vide order dated 16.5.2015. The order dated 15.6.2015 also suffers from an error which is apparent on the face of it. The learned court below mentioned that on the prayer of the opposite party, the evidence been closed, which is not a fact. No where in the petition dated 16.5.2015 the petitioner made a prayer to close the evidence. Further the court below observed that the case is of the year 2011 and is an old one. The court below failed to consider that the claimant herself adduced witness only on 8.4.2015. 8. In view of what been mentioned above, in my view, the order dated 15.6.2015 needs to be interfered with and thus is, hereby, set aside. Similarly, the order dated 16.5.2015, though not been challenged in this application, but in the interest of justice since I have set aside the order dated 15.6.2015, also needs to be set aside. 9. The petitioner is given an opportunity to lead evidence. The petitioner will appear before the learned court below within fifteen days from today along with the copy of this order. The court below will fix a date on which the petitioner will lead his evidence. The petitioner is directed to conclude his evidence within six weeks thereafter. The court below will try to conclude the proceedings as early as possible without adjourning the matter unnecessarily. 10. This revision application stands allowed. Application allowed.