Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 5764 of 2019 Petitioner :- Ram Taul Respondent :- Bipendra And Another Counsel for Petitioner :- Paras Nath Singh
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 4.4.2018 passed by the Principal Judge, Family Court, Basti rejecting the application dated 24.4.2017 filed by the petitioner seeking recall of orders dated 23.5.2007, 28.5.2015 and 17.4.2017.
All the above orders have been passed in Suit No.257 of 2003 instituted by the respondents under Section 18 of the Hindu Adoption and Maintenance Act 1956 against the petitioner claiming maintenance from him. The case of the plaintiff- respondents is that the petitioner, who is father of plaintiff- respondent No.1 and husband of plaintiff-respondent No.2, has without justifiable cause refused to maintain them. They have no independent source of livelihood. The trial court passed an order on 23.5.2007 allowing application 6-Ga and 40-Ga filed by the plaintiff-respondents and directed the petitioner to pay Rs.700/- per month as interim maintenance to them. On 26.9.2015, i.e., after almost seven years, the petitioner filed an application 52-Ga seeking recall of order dated 23.5.2007. The ground taken in the said application was that the petitioner had no knowledge of the proceedings. He came to know of the same for the first time when the plaintiff gave statement in this regard in proceedings under Section 125 Cr.P.C. on 27.4.2014. The trial court rejected the said application by order dated 28.5.2015 being not satisfied with the explanation furnished by the petitioner in respect of delay in filing the application. The petitioner thereafter filed another application bearing Paper No.58-Ga in which he again prayed for recall of order dated 23.5.2007. The said application was rejected by the trial court by order dated 17.4.2017 on the ground that earlier application 52-Ga with same prayer had already been rejected on merits after hearing both the parties. The petitioner once again filed application dated 24.4.2017. This time he prayed for recall of all the three orders i.e., 23.5.2007, 28.5.2015 and 17.4.2017. The trial court has rejected the application taking note of the fact that the application 52-Ga seeking recall of order dated 23.5.2007 was rejected on merits. The trial court observed that even if the date of knowledge of order dated 23.5.2007 is assumed to be 27.4.2014, still the application 52-Ga was delayed by more than five months.
Counsel for the petitioner submitted that the court below has taken a very technical view in rejecting the application for recall. It is urged that in the interest of justice the order should have been recalled and the petitioner should have been given opportunity of hearing.
It is not in dispute that the application 52-Ga was rejected on 28.5.2015 after hearing the petitioner on merits. In case he was not satisfied with the said order, he should have challenged the same before higher court. The suit is yet to be decided on merits. The interim maintenance awarded is a meagre sum of Rs.700/- per month and counsel for the petitioner admits that the petitioner has not paid a single penny to the respondents pursuant to the said order. Filing of repeated applications by the petitioner for recall of the said order amounts to gross abuse of the process of law.
The petition is dismissed with a cost of Rs.10,000/- to be paid by the petitioner to the respondents alongwith the sum due towards interim maintenance, within a period of three months.
In case of default, it shall be open to the respondents to recover the entire amount including the cost awarded by this Court in execution proceedings.
(Manoj Kumar Gupta, J.) Order Date :- 26.8.2019 skv