GIAN CHAND Vs. URMILA KUMARI

JUDGEMENT

(1.) On an application moved by Smt. Unnila Kumari under section 125 of the Code of Criminal Procedure 1973, the trial court awarded a monthly maintenance of Rs. 200 in her favour and against her husband, Gian Chand. It appears that although Gian Chand had been initially contesting those proceedings, he subsequently failed to make appearance and, therefore, the court- decided the matter in his absence. According to Gian Chand he was unavoidably delayed at Chandigarh and had sent a telegram seeking adjournment. This, however, was not allowed. The trial was, therefore, concluded, and after allowing a short adjournment and hearing arguments of the petitioner the aforesaid maintenance was awarded. The relevant order was dated 29th November, 1976.

(2.) Against this order Gian Chand moved an appeal before the Additional Sessions Judge on 4th January, 1977. Notice thereof was directed to be issued tO Smt. Urmila for 4th February, 1977. It is not clear from the record as to what happened on 4th February, 1977 as in the meanwhile, the appeal was transferred to the court of Smt. S. Duggal, Additional Sessions Judge, New Delhi. Gian Chand was directed to appear in that court on 7th February, 1977. On this latter date he moved an application to the effect that due to inadvertence he had filed that appeal, and instead a revision should have been moved. He, therefore, prayed that the word "appeal" may be substituted by the word "revision" in the said memo of appeal, and the same be treated as a revision.

(3.) Notice of this application as also of the main appeal, was given to Smt. Urmila Kumari who on appearance contested the Substitution of the word 'appeal' by 'revision' in, the memo of appeal already presented. The learned Additional Sessions Judge after hearing both the sides, held by the impugned order that the appeal could not be treated as a revision. It was noted that under section 401(5) of the Code of Criminal Procedure, a provision had been made for treatment of revision as appeal. However, there was no corresponding provision which permitted the treatment of the appeal as revision. It was further felt that the Code of Criminal Procedure did not vest any inherent power in the Sessions Court. That power was available to the High Court only under section 482. The order of the learned Additional Sessions Judge shows that from the side of Gian Chand reference had been made to a decision of the Jammu & Kashmir High Court, reported 1969 J & K 105, wherein it was observed that where it was found that appeal was not maintainable it could be treated as 3 revision. These observations were treated as a mere passing reference as it was felt that perhaps the High Court had in the exercise of its inherent powers, held accordingly.