IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5611 OF 2018 BETWEEN:
1. NOOR AYESHA, W/O MOHAMMED KALEEM, D/O NAJIB AHMED SAHEB, AGED ABOUT 32 YEARS, 2. MOHAMMED ABDULAH, S/O MOHAMMED KALEEM, AGED ABOUT 7 YEARS, PETITIONER NO.2 BEING MINOR, REPRESENTED BY HIS MOTHER THE 1ST PETITIONER HEREIN AS NATURAL GUARDIAN.
RESIDING AT NO.118, 1ST MAIN ROAD, J.C.NAGAR, BANGALORE – 560 027. ... PETITIONERS (BY SRI. SYED QUALEELULLA QUADRI, ADV.) AND:
1. MOHAMMED KALEEM, S/O MOHAMMED JALEEL SAHAB (LATE), AGED ABOUT 44 YEARS, 2. SAJIDA BEGUM, W/O MOHAMMED JALEEL SAHAB (LATE), AGED ABOUT 65 YEARS, SL.NOS.1 AND 2 ARE R/AT STAR RESIDENCY, SF-301, 1ST MAIN ROAD, 2ND CROSS, CHINNANNA LAYOUT, KAVAL BYRASANDRA, R.T.NAGAR POST, BANGALORE – 560 032.
AND ALSO 1ST RESPONDENT WORKING AT TAKWA COMPANY, TABUK BRANCH, SAUDIA ARABIA. …RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 02.04.2018 PASSED BY THE HON’BLE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH – 57) IN CRL.APPEAL NO.422/2018 AND RESTORE THE CASE AND PERMIT THE PETITIONERS TO CONTEST THE CASE ON MERIT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Notice stands dispensed to the respondents since no adverse order to the interest of the respondents is being passed and also taking into consideration that in the appeal, order of dismissal for non-compliance of office objections came to be passed before service of notice on the respondents.
2. Having heard the learned counsel for the petitioners and on perusal of records, it would disclose that 1st petitioner herein who is the wife had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act seeking certain orders and maintenance came to be granted to the petitioners @ Rs.6,000/- per month. Seeking enhancement, an appeal in Crl.A.No.422/2018 came to be filed. Since there was defect in the appeal papers office had raised objection on the appeal papers so filed and matter had been listed before the Court from time to time for compliance and after having noticed that despite sufficient time having been granted and there being no representation on 2.4.2018 though matter was called thrice, learned appellate Judge with no other option, has dismissed the appeal and rightly so. No fault can be laid at the doors of the appellate Judge.
3. However, Sri. Syed Qualeelulla Quadri, learned counsel appearing for the petitioners seeks for indulgence by this Court in exercise of extraordinary power vested under Section 482 of Cr.P.C. for restoration of the appeal contending that appellants’ counsel was not keeping well on the said date and as such he could not appear. Though no material is produced in that regard, this Court has no reason to disbelieve the statement made by the learned counsel for the petitioners. Hence, impugned order deserves to be set aside conditionally.
4. Accordingly, petition is allowed. Order dated 2.4.2018 is set aside. Crl.A.No.422/2018 is restored to the file of the jurisdictional appellate Judge namely, Principal City Civil and Sessions Judge, Bengaluru to enable the learned counsel for the petitioners/appellants to comply with the office objections forthwith.
5. The appeal shall be called on 15.4.2019, on which date without waiting for further notice the petitioners/appellants shall appear before the jurisdictional Court and comply with office objections.
A cost of Rs.1,000/- is ordered to be paid by the petitioners to the Karnataka State Legal Services Authority and receipt shall be filed before appellate Court.
SD/- JUDGE bkp