Court No. - 49
Case :- CRIMINAL REVISION No. - 643 of 2018 Revisionist :- Fardeen Ahmad Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Jawahir Yadav Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the parties and perused the record.
This revision is directed against the order dated 23.01.2018, by which the applicant's application under Section 126(2) Cr.P.C. to recall the exparte order dated 27.09.2017 (passed under Section 125 Cr.P.C.), has been rejected. By that order monthly maintenance allowance Rs. 3,000/- per month in favour of the opposite party no.2 and Rs. 1,000/- per month in favour of opposite party no. 3 had been directed to be paid by the applicant, from the date of application being 07.03.2017.
While the application under Section 126(2) Cr.P.C. has been rejected on the reasoning that the applicant has sufficient notice of the proceedings. I do not find any error in the reasoning of the court below in rejecting the application under Section 126(2) Cr.P.C.
As to the amount of maintenance allowance awarded, learned counsel for the applicant submits that the same is excessive in view of the fact that the applicant is only a manual labourer. On the other hand, the opposite party no.2 had, during the course of proceeding asserted that the applicant was a mason earning Rs. 25,000/- per month.
Nothing has been shown by way of evidence to suggest that assertion made by the opposite party no.2 before the court below was either wrong or that the applicant did not have the earning capacity as has been estimated by the court below. Accordingly, I do not find any ground to interfere with the estimation of monthly maintenance allowance directed to be paid by the applicant.
Thereafter, it has been submitted that the learned court below has erred in awarding the monthly maintenance allowance from the date of application, whereas it should have made from the date of order.
Insofar as the order has been made for payment of maintenance amount from the date of application, I do not find any error in the same in view of the fact that the application had been filed by the opposite party on 07.03.2017, which ought to have been decided within a period of 60 days from that date. However, the same has been decided more than 6 months from the date when such application was filed.
The opposite parties have not received any amount towards maintenance as had been claimed by them and which under law, they were entitled to. Also, even upon amount as claimed becoming payable they have not become entitled to any interest for the inordinate delay. The cost of such delay, if at all has to be borne by one party, it has to be the applicant herein and not the opposite parties/claimant especially, when the law created an expectation for the application to be decided within sixty days of it being filed. Therefore, in my view the award of the maintenance from the date of application does not suffer from any infirmity.
Insofar as the applicant has prayed for time to make good the deficiency of deposit, looking into the facts it does appear that the applicant is a mason, the ends of justice would be met, if the applicant is allowed some time to make such deposit.
Accordingly, the instant revision is disposed of with the following directions:
1. Subject to the applicant furnishing adequate security to the satisfaction of the court below in the shape of other than cash or bank guarantee, by 31.03.2018 further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
2. The applicant shall continue to deposit the monthly maintenance allowance from the period from March, 2018 onwards as and when it becomes due, in the manner provided by the court below under the impugned award.
3. Subject to the applicant having complied with the above, the amount of Rs. 48,000/, as arrears of maintenance allowance for the period from the date of application till date shall be deposited in two instalments, first Rs. 24,000/- being payable on or before 31.05.2018 and the balance amount of Rs. 24,000/- shall be deposited on or before 31.07.2018.
The amount so deposited by the applicant shall be released to the opposite parties no. 2 and 3 forthwith.
However, it is made clear that in the event of failure on part of the applicant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court and recoveries be made first from the security, if any, offered by the applicant in compliance of this order.
Disposed of.
Order Date :- 26.2.2018 Lbm/-