(Crl. Misc. Application No.66006 of 2021: Application for Recall of Order dated 4.1.2021) This application is filed by the husband applicant-respondent No.2 to recall the final order dated 4.1.2021 passed in the present criminal revision.
By the order dated 4.1.2021, the present criminal revision was decided ex parte against the applicant-respondent No.2, treating service of notice sufficient upon him. By the said order, the maintenance amount granted by the Court below under Section 125 CrPC was enhanced from 1500/- to Rs.3000/- per month with effect from 8.10.2001 (from the date of institution of proceeding) till 14.1.2020 (date on which judgment was passed by the Court below) and from Rs.4000/- to Rs.15,000/- per month from 14.1.2020 onwards, and any amount deposited/paid by the applicant-respondent No.2 in compliance of the order of Court below dated 14.1.2020, was to be adjusted in the said payment. Further, the maintenance from the date of institution of application till 31.1.2021 was directed to be paid in 15 equal monthly instalments starting from 1.3.2021 onwards till the entire amount is paid.
I have heard learned counsel for parties on this recall application. Without going into the issue, whether recall application is maintainable in a criminal revision or not, the recall application is decided on merit.
The recall application is filed by the applicant-respondent No.2 on 25.3.2021. In the recall application most of paragraphs are with regard to the merits of the case. With regard to grounds and facts for recall of the order learned counsel for applicant-respondent No.2 referred to para 2, para 17 to 19 and para 64 of the affidavit filed in support of the recall application. The said paragraphs state that the applicant-respondent No.2 is not residing on the address on which the notice was sent. In paragraph 17 to 19, the applicant-respondent No.2 has stated that he has not received notice of aforesaid case and thus, could not appear; the notice was deliberately sent to the address where applicant-respondent No.2 is not residing, only to deprive him from appearance in the case; the notice was served upon his nephew (Bhanja) who is not a family member and, therefore, the service is not sufficient as per Section 64 of the CrPC. The Court has wrongly noted, in paragraph 2 of the order dated 4.1.2021 of this Court, that service under Section 64 of the CrPC is sufficient. On the aforesaid grounds, the learned counsel for applicant-respondent No.2 submits that this is a fit case for recall of order as the same is passed without proper service of summons upon the applicant-respondent No.2 as per Section 64 of the CrPC.
Opposing the same, learned counsel for petitioner states that service is sufficient upon the Bhanja who is a family member of the applicant-respondent No.2. The applicant-respondent No.2 throughout was aware of the proceedings and he himself admits that there are around 20 different cases pending between him and the petitioner. In such a situation, it cannot be said that applicant-respondent No.2 was not aware of the present proceedings. The applicant-respondent No.2 has nowhere stated that he never resided on the said address. In all the paragraphs, he merely states that "he is" not residing on the said address. In fact, he was at the relevant time residing at the same address. It is further stated that on the notice which was sent to the applicant-respondent No.2, the server has also noted his mobile number and stated that applicant-respondent No.2 is also informed on the said mobile number. This fact is not disputed by the applicant-respondent No.2 or his affidavit or by his counsel during arguments.
Chapter XVIII of Part III of The Allahabad High Court Rules, 1952 (Rules of 1952) provides proceedings other than original trials. Rule 9 of Chapter XVIII of Part III of Rules of 1952 provides that if an appeal or revision is not dismissed summarily a day shall be fixed for its hearing and notices in the prescribed form shall be issued. For convenience, the said Chapter XVIII Rule 9 is quoted as under:-
"9. Issue of notice.-- If an appeal is not dismissed summarily a day shall be fixed for its hearing and notices in the prescribed form shall be issued.
If an application for revision or other application is not rejected and an order directing the issue of notice is made, a day shall be fixed for its hearing and notices in the prescribed form shall be issued.
After notices have been issued in an appeal or revision the record shall be sent for unless otherwise ordered.
In the case of an appeal under Section 341 of the Code of Criminal Procedure, 1973, the record of the case out of which the proceedings under appeal arose shall also be sent for unless otherwise ordered." (emphasis added).
The said fact is further clear from Chapter XVIII Rule 22 which provides that notices in different classes of cases shall, unless otherwise orders, be issued as indicated below which includes a revision also. Rule 22 is also quoted below:-
"22. Notice :- Notice in different classes of cases shall, unless otherwise ordered, be issued as indicated below, namely--
(1) Appeal :- Where an appeal has not been dismissed summarily notice of the time and place at which such appeal will be heard shall be given to--
(i) the appellant or his Advocate, or, where the State is the appellant, to the Government Advocate, and
(ii) where the State is not the appellant, to the Government Advocate, and, where the State is the appellant to the respondent as also to the Court appealed from.
(2) Revision :- Where notice has been directed to be issued, notice shall be given to the applicant, if any, or his Advocate and the Government Advocate as also to such opposite parties as may be arrayed in the application. Where the State is the applicant notice shall be given to the Government Advocate and such opposite parties as may be arrayed in the application.
Where the Court acting under Section 401 of the Code of Criminal Procedure, 1973 directs notice to be issued, notices shall be given to the Government Advocate and the accused or in a case in which there has been no conviction or acquittal, the parties affected by the order passed in the case.
(3) Reference :- Where notice has been directed to be issued on a reference 93[under Section 395 of the Code of Criminal Procedure, 1973], notice shall be given in accordance with the second paragraph of Clause (2).
In a reference under Section 366 of the Code of Criminal Procedure, 1973, notice shall be given to the Government Advocate and, if possible, to the accused or his guardian or Advocate.
In a reference under section 318 of the Code of Criminal Procedure, 1973, notice shall be given to the Government Advocate and, if possible, to the accused or his guardian or Advocate.
(4) Miscellaneous Application :- In a miscellaneous application notice shall be given to the applicant, the Government Advocate and the opposite parties and where the application is on behalf of the State to the Government Advocate and the opposite parties Provided that no notice of an application under Section 378 (4) of the Code Criminal Procedure, 1973 need be issued to the accused opposite party." (emphasis added) Chapter VIII Rule 12 of Rules of 1952 further deals with service of notice by post or publication. It reads as follows:-
"12. Service of notice by post or publication.- A notice, in addition to the court notice, may also be served by the petitioner/appellant through his Advocate to the respondent(s) by registered post or speed post or by such courier service, as may be approved by the court, or any other electronic mode and file affidavit of service accompanied by proof thereof or with the permission of the court by substituted service, publishing the notice in a daily newspaper, having wide circulation in the districts, in which the defendant/respondent is last known to have actually or voluntarily resided/carried on business or personally worked for gain;
Provided that where an order for publication of notice has been passed by the Court or by the Registrar General, as the case may be, the party on whose behalf the notice is to be published shall, within seven days from the date of the order, obtain the tentative date from the office on the prescribed form of the notice duly filled in by the party or his counsel and shall get it published before the date fixed in a daily newspaper circulating in the locality in which the respondent or the opposite party, as the case may be, is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
Provided further that the party or his counsel getting the notice published as aforesaid shall so arrange that the notice is published at least ten days before the date fixed in the notice and shall file a copy of the newspaper containing the notice before the Registrar General a week before the date fixed.
Provided also that where the copy of the newspaper is not supplied within the time prescribed in the preceding proviso, the case or the application, as the case may be, on which the order for publication of notice had been passed, shall be listed before the Court for such orders as the Court deems fit.
Explanation I :- Where the party fails to file the copy of the newspaper he shall be deemed to have committed default in supplying the notice, and the provisions of Rule 4 of Chapter XII shall mutatis mutandis apply in such cases.
Explanation II :- A notice sent by registered post shall, unless it is received back from the post office as undelivered, be deemed to have been served at the time at which it would be delivered in the ordinary course of post."
The notice was issued upon the applicant-respondent No.2 as per proforma prescribed under Chapter XVIII/Rules 9 and 22 of Rules of 1952. Therefore, the summons were not issued in the present criminal revision under the provisions of CrPC. Thus there is no question of applicability of Section 64 CrPC. The notices were issued under the Rules of 1952 in the present proceedings. The said notice was duly served upon the applicant-respondent No.2. There is no compulsion that notice be served upon the male family member of party. Service of notice is duly effected upon a family member of applicant-respondent No.2. It is nowhere disputed that notice is duly served upon the Bhanja of applicant-respondent No.2. It is nowhere disputed by the applicant-respondent No.2 that he was informed on phone with regard to notice of the present proceedings. Further, the applicant-respondent No.2 has also nowhere stated that he never lived on the address on which the notice was sent. The only repeated statement, made by the applicant-respondent No.2 in the affidavit and even in the Court is, that, he is not residing on the said address.
Looking into the entirety of above noted facts and circumstances of the case and also the long drawn litigation, as admitted by the applicant-respondent No.2 himself in his affidavit in support of recall application, this Court does not believe the conduct of the applicant-respondent No.2 to be bona fide in not appearing in the case and stating that the notice was not served upon him. The applicant-respondent No.2 cannot be permitted to unnecessarily prolong the proceedings, pending before this Court. It is the duty of parties to fully cooperate in the early disposal of case. No party having knowledge of the case can force the Court to first pass an ex parte order and then claim right to recall the same even when its bona fide is not proved. The present case falls in such a category. The applicant-respondent No.2 had knowledge of the pendency of the present case and when ex parte order was passed, he claims his right to recall the order on ground of non-appearance, which in the given facts cannot be said to be bona fide. In view of the aforesaid, the application for recall deserves to be rejected with costs.
The application for recall is rejected with costs which is quantified to Rs.1000/-. The costs shall be deposited in Registry by the applicant-respondent No.2 within three weeks from today.
Order Date :- 17.8.2021 Rajneesh JR-PS) (Vivek Chaudhary, J.) Court No. - 8 Case :- CRIMINAL REVISION No. - 300 of 2020 Revisionist :- Smt.Poornima Asthana Opposite Party :- State Of U.P. Through Prin.Secy.,Animal Husbandry & Another Counsel for Revisionist :- Rajendra Prasad Sharma Counsel for Opposite Party :- Govt. Advocate,Prem Shankar Hon'ble Vivek Chaudhary,J.
(Crl. Misc. Application No.37728 of 2021: Application for Correction in the Order dated 4.1.2021) This application is filed on behalf of the petitioner. The correction sought for, are clerical in nature.
The application is allowed. The order dated 4.1.2021 is corrected in the following manner:-
(1) In para 6 line 5 of the order, the word "petitioner" is replaced with word "opposite party No.2".
(2) In para 7 line 8 of the order, the word, "daughter" is replaced with word "son".
Order Date :- 17.8.2021 Rajneesh JR-PS) (Vivek Chaudhary, J.)