ANUPBHAI JAYANTILAL MODI Vs. HINABEN ANUPBHAI MODI

JUDGEMENT

(1.) RULE. Shri D.P. Kinariwala, learned advocate waives service of notice of Rule on behalf of respondent No.1 and Shri L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.2. In the fact and circumstances of the case and with the consent of learned advocates appearing for respective parties, petition is taken up for final hearing today. Present petition under Article 227 of the Constitution of India has been preferred by the petitioners original opponents to quash and set aside the impugned order dated 17.02.2011 passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No.2/2011, by which the learned Sessions Judge has directed to transfer the proceedings of Criminal Miscellaneous Application No.826/2010 to the Court of learned 3rd Additional Civil Judge and Additional Chief Judicial Magistrate, Ahmedabad (Rural) to be heard with Special/Regular Civil Suit No.570/2009.

(2.) SHRI Modi, learned advocate appearing on behalf of the petitioners has vehemently submitted that as such there was no reason whatsoever for the learned Judge to transfer the proceedings under the Domestic Violence Act to be heard alongwith civil suit filed by the landlord which is to get the possession of the property in which the petitioner No.1 and wife were residing. It is submitted that as such an application was submitted at the time when the learned Judge was hearing the Application No.826/2010 for dropping the proceedings and exemption and the same was only at the stage of arguments on behalf of respondent No.1 and at that stage respondent No.1 submitted the application to transfer the case. It is further submitted that as such the dispute/controversy in Domestic Application No.826/2010 has nothing to do with the controversy in the Regular Civil Suit No.570/2009 which was filed by the landlord to get the possession of the property in question. Therefore, it is requested to allow the present petition and to quash and set aside the impugned order.

(3.) IN view of the above and for the reasons stated above and with above observations and clarifications with respect to rights of respondent No.1, impugned order dated 17.02.2011 passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No.2/2011 is hereby quashed and set aside and now the learned Chief Judicial Magistrate, Ahmedabad (Rural) to proceed further with the proceedings of Application No.826/2010 in accordance with law and on merits, and without in anyway being influenced by the present order and/or earlier order. Rule is made absolute accordingly.