RAM PADARATH PANDEY Vs. MITHLESH PANDEY

JUDGEMENT

(1.) Mr. S.K. Mishra, Special Judge-cum-Additional Sessions Judge of Azamgarh, vide his order dated 11.11.82 allowed Criminal Revision No. 190 of 1981, which was preferred against the judgment and order passed on 10.5.1981 by Sri Mahesh Chand, Judicial Magistrate of Azamgarh, who had rejected the application under Sec. 125 of the Cr. P.C. moved by Smt. Mithlesh Pandey against her husband Ram Padarath Pandey for maintenance allowance for herself and two daughters. Against this order Criminal Revision No. 190 of 1981 was preferred and it came up for hearing before Mr. S.K. Mishra, the then Special Judge/Additional Sessions Judge, Azamgarh. The learned Judge upset the findings recorded by the learned Magistrate, set aside his judgment and substitute it by his own, through which he directed Ram Padarath Pandey to pay maintenance allowance of Rs. 150.00 per month to the applicant Smt. Mithlesh Pandey for herself and her two daughters with effect from 3.8.79, the date of the application. Now this revision has been filed challenging the order of Mr. S.K. Mishra, Special Judge/Addl. Sess. Judge, Azamgarh.

(2.) Lower Court's record is before me. It appears when the evidence started, Smt. Mithlesh Pandey examined herself as P.W. 1 and one more witness Kunti Devi as P.W. 2 who is her sister. It also appears that the revisionist did not enter into the witness box at any stage of the proceedings, but the cross-examined Smt. Mithlesh Pandey P.W. 1 to some extent and did not even cross-examine P.W. 2. The record further shows that the cross-examination of P.W. 1 was deferred on 27.4.81. I may mention here that this order of deferring the cross-examination, was passed at the time when the lady was going to give some explanation about her service as a teacher and the salary that she was getting. Thereafter she was never again recalled for further cross-examination. Similarly the statement of Smt. Kunti Devi P.W. 2 was also incomplete. Her cross-examination was deferred and she was never again recalled for further cross-examination. But it appears to me that after 4.3.1981 the revisionist absented and the learned Magistratae proceeded ex-parte against him and based his judgment on the incomplete statements of the P.W. 1 and P.W. 2 and did not record any statement of any more witness after the ex-parte order had been made and on that basis the ex-parte judgment was not given. The learned Sessions Judge failed to take this fact into account and passed the impugned order. An affidavit was filed before the Sessions Court during the course of the hearing in the revision and the learned Sessions Judge has taken this affidavit also into consideration which was also not a correct procedure followed by him.

(3.) In the interest of justice it will be necessary to remand back the case to the learned Magistrate for fresh decision with a direction that both parties should be given an opportunity of adducing evidence and then judgment is delivered.