Court No. - 45
Case :- APPLICATION U/S 482 No. - 46525 of 2018 Applicant :- Sultan Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Shivendra Raj Singhal,Rajesh Kumar Namdev Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State The applicant is husband and opposite party no.2 is wife, who has initiated proceedings under section 125 Cr.P.c. by way of the application No. 832 of 2016.Perusal of the order sheet shows that date was fixed for cross examination of the opposite party no.2 but applicant did not avail the same.Therefore by order dated 16.8.2018 opportunity of cross examination of P.W.1 was closed and subsequently by the order dated 31.10. 2018 the opportunity of leading evidence of the applicant has also been closed on the ground that he has not cooperating with the trial.
The submission is that applicant lives 70 K.M. away from the court and on very day due to heavy rainfall he could not reach the court in time and request was made for adjournment of the case which was rejected and his opportunity of the cross examination of P.W.1 was closed.Applicant moved recall application which was rejected by the order dated 16.8.2018.The date of 19.9.2018 was fixed by the court below for evidence of the applicant but he did not lead any evidence on the date fixed. On the next date 31.10.2018 he did not appear and hence his evidence was closed.
The applicant has repeated the averment made in the recall application which prevented him from appearing before the court below.He has placed reliance upon the judgment of Ratanlal Vs. Prahlad Jat and other, passed Criminal Appeal No. 499 of 2014 dated 15.9.2017 wherein Apex court has held that the court should consider the bonafide of the parties and after balancing equity and considering the other aspect of the case should pass an order keeping in view that trial is not delayed In view of the above facts further litigation will delay the disposal of the case, hence the orders dated 16.8.2018 as well as order dated 31.10.2018 passed by Principal Judge,Family Court Badaun in Criminal Misc. Case No. 832 of 2016 (Smt. Wasim Vs. Sultan) under section 125 Cr.P.c. are hereby quashed.
Applicant shall be afforded one opportunity of cross examination of P.w.1 by the court below on the next date fixed subject to payment of Rs. 5,000/-. He will also be afforded one opportunity to lead evidence. In case applicant fails to avail the opportunity, court below shall proceed with the case further.The amount of cost shall be paid to the opposite party no.2 by the court below.
The application stands disposed of.
Order Date :- 20.12.2018 Atul kr. sri.