IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.646/2017 BETWEEN:
Sri Syed Sadiq Ahmed S/o Syed Aftab Ahmed Aged about 36 years Residing at Behind Girls High School Pampa Mahakavi Road, Tarikere at Post Chikkamagaluru District.
Presently residing at No13, 4th Cross, Narayanappa Block, Bangalore-560 046.
(By Sri J.D. Kashinath, Advocate) AND:
1. Smt. Shamreen Banu W/o Syed Sadiq Ahmed Aged about 26 years … Petitioner 2. Sri Sayed Varsh Ahmed S/o Syed Sadiq Ahmed Aged about 6 years Since Minor represented by his Natural Guardian Respondent No.1 Mother Both are residing at 1st Cross Mudigere Town, Mudigere, Chikkamagaluru District.
(By Sri N.R. Ravikumar, Advocate) … Respondents This Criminal Revision Petition is filed under Section 397 r/w. 401 of Cr.P.C praying to set aside the judgment and order dated 08.03.2017 passed in Criminal Appeal No.174/2016 passed by the Prl. District and Sessions Judge, Chikkamagaluru, on the appeal filed by the respondents, challenging the order dated 18.01.2016 passed in Crl.Misc.No.324/2012 as illegal.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R The present criminal revision petition has been filed by the petitioner-husband being aggrieved by the judgment passed by Principal District and Sessions Judge, Chikkamagaluru in Criminal Appeal No.174/2016 dated 8.3.2017.
2. I have heard the learned counsel appearing for the petitioner-husband and the learned counsel appearing for the respondent-wife.
3. The brief facts of the case are that marriage of the petitioner-husband was solemnized with respondent-wife on 26.4.2009 and thereafter respondent No.2 son was born. Subsequently, there was a demand of dowry in the form of cash and gold and as such the respondent started residing with her parents’ house. It is further submitted that as the respondent and her son were not able to maintain themselves and the petitioner has not paid any maintenance, a Criminal Misc.No.324/2012 was filed under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as ‘PWDV’ Act for short).
4. After filing the objection by the husband the Court below allowed the said petition on 18.1.2016 by awarding maintenance of Rs.2,000/- to wife and the son and Rs.1,000/- towards litigation expenses. Being aggrieved by the said order, the husband has preferred the appeal in Criminal Appeal No.160/2016 and the wife also not being satisfied with the order of maintenance, she also preferred Criminal Appeal No.174/2016 before the District and Sessions Judge, Chickmagaluru. Thereafter, Criminal Appeal No.174/2016 was heard and decided on 8.3.2017. Being aggrieved by the same, the husband is before this Court.
5. The main contention of the learned counsel for the petitioner is that, the order passed by the Court below is not sustainable in law. The record discloses the fact that the said appeal has been preferred by an application for condonation of delay. The trial Court without considering the application for delay, has heard the case and disposed of on the main, which itself is not sustainable in law.
He further submitted that prior to hearing the case on merits, the trial Court ought to have considered the application for delay and thereafter after passing an appropriate order the case should have been decided on merits. He further submitted that, husband has also preferred Criminal Appeal No.160/2016 challenging the same order and when the said order is also in question, then under such circumstances the Court below ought to have heard both the cases together and thereafter appropriate order has been passed. In this behalf also, the trial Court has committed an error. On these grounds he prays to allow the petition and to set aside the impugned judgment of the trial Court.
6. Per contra, the learned counsel for the respondent- wife fairly conceded that the Court below has not considered the application filed under Section 5 of the Limitation Act and has disposed of the main case on merits. This is an illegality, it goes to the root of the case, since the case has been heard and decided on its merits and as such he substantiate the judgment of the trial Court. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
8. It is not in dispute that against the order passed in Crl.Misc.No.324/2012 dated 18.1.2016 wife preferred Criminal Appeal No.174/2016 and the present petitioner husband has also filed Criminal Appeal No.160/2016 and both the cases are pending before the same Court. It is also not in dispute that the Criminal Appeal has been filed after the period of limitation along with IA No.1/2016 for condonation of delay. Even as could be seen from the order sheet made available, though notice came to be issued to the husband and order sheet dated 2.12.2016 shows that ‘notice to respondent un-served as left the address’ and thereafter no fresh notice has been issued, but on 30.12.2016 an endorsement has been made to the effect that notice to respondent through RPAD is refused and service of notice held sufficient and thereafter the matter has been heard and the judgment has been pronounced.
9. It is well settled principles of law that whenever an appeal or a revision has been filed with an application for condonation of delay, in the first instance the application for the delay has to be considered and decided, thereafter the case has to be heard and decided on merits. Without considering the said application, the Court below has passed the impugned order. That itself considered to be erroneous and not sustainable in law.
10. Be that as it may. Even as could be seen from the records, the present petitioner-husband has also preferred Criminal Appeal No.160/2016 against the same order passed by the trial Court in Crl.Misc.No.324/2012 and the same was also pending before the same Court, without clubbing the same and hearing them together the order has been passed.
11. If two appeals are heard and decided by two different judges, then there is every possibility of conflicting of decision and in order to avoid the same, the Court below ought to have clubbed and decided the matter. Ignoring this aspect the Court below has proceeded hurriedly to hear Criminal Appeal No.174/2016 and passed the impugned order, so also it appears that some illegality has been committed in this behalf. Even as could be seen from the order sheet of the trial Court, when there is no proper service of notice to the husband, the Court has proceeded and passed the impugned order.
12. Under the above facts and circumstances, I feel that the impugned judgment passed by the trial Court is erroneous in law and same is not sustainable and same is liable to be set side.
13. Accordingly, the petition is allowed and the judgment of the Principal District and Sessions Judge, Chickmagaluru, in Criminal Appeal No.174/2016 dated 8.3.2017 is set aside and the matter is remitted back to the Principal District and Sessions Judge, Chickmagaluru with a direction that both Criminal Appeal No.160/2016 and Criminal Appeal No.174/2016 are be heard together and after considering the application for condonation of delay, an appropriate order has to be passed.
Since the matter appears to be of the year 2016, both the parties are hereby directed to appear before the Principal District and Sessions Judge, Chickmagaluru without further notice on 18.2.2019.
In view of disposal of the petition, IA No.1/2017 does not survive for consideration and accordingly, it is disposed of.
Sd/- JUDGE *AP/-