1. Rule. Learned APP Ms.Chetna Shah waives service of notice of Rule on behalf of respondent No.1-State and learned advocate Mr.Utpal Panchal waives service of notice of Rule on behalf of respondent No.2.
2. By way of present Revision Application, the applicant has challenged the order dated 21.8.2010 passed by the learned Judge of Family Court at Surat in Criminal Misc. Application No.183 of 2010 (Exh.8) which was filed by respondent No.2 through his natural guardian, who happens to be the mother of the minor. The said application was filed under Section 125 of the Code of Criminal Procedure.
3. The only contention raised by the applicant is that the learned Family Court has passed an ex-parte order awarding Rs.2,500/- per month as maintenance for the minor from 5.4.2010 and also awarded Rs.500/- towards cost of the application. It was submitted by learned advocate Ms.Namrata Chauhan appearing for learned advocate Ms.Kruti Shah for the applicant that the summons which was issued by the learned Magistrate was made returnable on 01.5.2010 on which the applicant did remain present in the Court of learned Magistrate but the same was declared as a holiday, and it was also published on the notice board that the matter listed on 1.5.2010 shall be taken up on 15.5.2010. It is further submitted that, on 15.5.2010 the applicant went to the court, and being ignorant of procedure of court, he remained in one court believing that there would be only one court, and as his name was not called out till afternoon he inquired about his case. It is the case of the applicant that he was asked to make inquiry in other court, and when he approached to the other court, no specific date has been given and, therefore, he could not remain present in the said proceedings. Thereafter when he was served with a notice dated 14.09.2010 about the recovery application filed by respondent No.2 under Section 125(3) of Cr.P.C., he came to know about the impugned order.
3.1 Learned advocate for the applicant submits that, in this peculiar facts and circumstances, the learned trial court ought not to have decided the case in absence of his client, and requests to remand the matter for fresh hearing.
4. On the other hand, learned advocate Mr.Utpal Panchal appearing for the respondent No.2 has read the impugned order, and submitted that the trial court has observed in para 5 of the order that the present applicant had submitted an application on 15.5.2010 and prayed for adjournment by filing an application Exh.4 which was granted by the trial court. He further submitted that, on the next date of hearing, neither the applicant nor his advocate submitted an application for adjournment. The learned Judge had no authority but to close the right of respondent to file his affidavit and reply if any, and, therefore, on 19.6.2010 the stage for filing affidavit-in- reply was closed by the trial court. He submitted that, even if it is accepted that on 15.5.2010, the applicant remained present before the court, but thereafter did not care to inquire about his case till he received notice under Section 125(3) of Cr.P.C. He submitted that in view of these facts the application is required to be dismissed.
5. Heard learned advocates appearing for the parties. I am of the view that the impugned order does not disclose that, on 15.5.2010 when the application was submitted by the applicant, whether any fixed date was given to the applicant or not. It is possible that the applicant might not be aware about the next date of hearing and he chose not to remain present before the court. Therefore present application deserves consideration. However, it appears that the applicant has remained negligent about his case from 15.5.2010 till September 2010 and has not cared of the court proceedings and, therefore, I am of the opinion that some cost shall be imposed for his negligence. Hence the following order.
6. The application is allowed. The impugned order dated 21.8.2010 passed by the learned Judge of Family Court at Surat, below Exh.8 in Criminal Misc. Application No.183 of 2010 is hereby quashed and set aside. The learned Judge of Family Court at Surat is requested to decide the application Criminal Misc. Application No.183 of 2010 (Exh.8), after affording sufficient opportunities to both the parties, as expeditiously as possible.
The applicant shall deposit an amount of Rs.3,500/- towards the cost in the trial court on or before 17th August, 2012. If the amount is deposited, the same shall be paid to the respondent No.2.
It is made clear that if the amount of Rs.3,500/- is not deposited within stipulated time, the trial court shall take appropriate steps against applicant.
Rule is made absolute to the above extent. Direct service is permitted.
( A.J. DESAI, J. ) syed/