Court No. - 72
Case :- APPLICATION U/S 482 No. - 17335 of 2019 Applicant :- Sandeep Singh Opposite Party :- State Of Up And Another Counsel for Applicant :- Jai Prakash Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Jai Prakash Singh, learned counsel for the applicant and learned AGA for the State.
2. The present application has been filed to challenge the ex- parte order dated 05.07.2017 passed by the Principal Judge, Family Court, Shahjahanpur in Case No.2 of 2016, by which, the learned court below has awarded maintenance allowance @ Rs.5,000/- per month to the opposite party no.2 and @ Rs.2,500/- per month each to her two children, from the date of that order.
3. Also, challenge has been raised to further order passed by the Principal Judge, Family Court, Shahjahanpur dated 17.10.2018 in Misc. Case No.174 of 2017, which application had been filed for recall of the recovery and arrest warrant issued in pursuance of the earlier order dated 05.07.2017.
4. Learned counsel for the applicant submits that the order had been passed without allowing sufficient opportunity to the applicant to be heard. Therefore, he had filed recall application, which was pending. In such circumstances, it has been submitted that the order dated 05.07.2017 and the order dated 17.10.2018 are wholly excessive and arbitrary.
5. Having heard learned counsel for the applicant and having perused the record, it appears that the ex-parte order dated 05.07.2017 had arisen in view of the fact that despite service of summon and notice, the said applicant though filed Vakalatnama but did not remain present on subsequent dates. Thus, by order dated 07.03.2017, the proceedings were directed to proceed ex-parte against the applicant. Four months thereafter, the final order was passed and the maintenance allowance was awarded, keeping in mind the financial status of the applicant with respect to which, evidence was led by the opposite party no.2 that the applicant was running a dairy and had agricultural income totalling to about Rs.40,000/- per month. Also, he was deriving income from coaching activity.
6. The order dated 17.10.2018 was passed on the application filed by the applicant to recall the recovery and arrest warrant. By that order, the learned court below had provided, if the applicant deposits a sum of Rs.75,000/-, the process may be stayed. Admittedly, the applicant did not make such deposit.
7. In view of the facts and circumstances noted above, it appears that, the award of maintenance allowance @ Rs.10,000/- per month (in all) from the date of order is neither excessive nor arbitrary. It appears that the minimum amount is to be provided to the opposite party no.2 and her children to keep them away from destitution and vagrancy. The applicant having failed to avail the indulgence granted by the learned court below while seeking recall of the recovery and arrest warrant, no interference is warranted on merits.
8. 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 engaged in business, the ends of justice would be met, if the applicant is allowed some time to make such deposit.
9. Accordingly, the present application is disposed of with the following directions:
(i) Subject to the applicant furnishing adequate security to the tune of Rs. 2,20,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee by 31.05.2019, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
(ii) The applicant shall continue to pay monthly maintenance allowance @ Rs.5,000/- per month to the opposite party no. 2 and @ Rs.2,500/- per month each to her two children from the period May, 2019 onwards on or before the tenth day of each calendar month.
(iii) The applicant shall deposit a sum of Rs. 2,20,000/- being the entire amount of arrears payable to the opposite party no. 2 in four instalments, such instalments being payable on or before 31.05.2019, 31.07.2019, 30.09.2019 and 30.11.2019 respectively. The first instalment would be of Rs. 70,000/- while the last three instalment would be of Rs. 50,000/- each.
(iv) Subject to aforesaid compliance being made, no coercive measure shall be taken against the applicant.
(v) All the amounts may be either paid to the opposite party no.2 directly or be deposited by the applicant with the Court below within time indicated above. In the latter case the amount/s shall be released to the opposite party no.2, forthwith.
(vi) 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.
Order Date :- 30.4.2019 Abhilash