ANNAPURNA Vs. SAMADHAN PUNDLIK

JUDGEMENT

(1.) This revision arises out of an order passed in maintenance proceedings under Sections 125 and 126 of the Criminal Procedure Code. The applicant wife had filed proceedings under Sec. 125 Cri.P.C. against her husband-non-applicant Samadhan it as Misc. Cr. Application No. 7 of 1982. The non-applicant husband had filed his written statement and the case was fixed for evidence of parties on 24-3-83. On that date, non-applicant was absent and the Trial Court proceeded ex parte against him On 7-4-83 an order for grant of maintenance in favour of the applicant was passed.

(2.) Thereafter on 6-5-1983, the non-applicant husband filed an application for setting aside the order of grant of maintenance dated 7-4-83. In the said application, he pleaded that he was rot wilfully avoiding to contest the case but was prevented from, presenting himself on 24-3-83 due to illness. On non-applicant's furnishing certified copies of earlier orders, the Trial Judge issued notice to the applicant-wife calling upon her to show cause why the ex parte order should not be set aside. The applicant wife filed her reply denying the contentions raised in the application for setting aside ex parte order. Thereafter on 8-8-1983, the learned Judge passed the following order:-

(3.) Shri B. S. Deshpande, Advocate appears for the applicant-wife, while the non-applicant husband is represented by Shri D. K. Khamborkar, Advocate. It was urged on behalf of the applicant that the Trial Court had no jurisdiction to set aside the said order, once it is passed finally. The only remedy open to the non-applicant husband was to prefer revision against the said order. He also contended that the Trial Court could not reopen the case, which was concluded before the Trial Court. Lastly, in the alternative be submitted that on merits, the husband has not shown his bona fides nor had adduced any proof of his illness on 24-3-83 and as such, the Trial Court has arbitrarily decided the said application and the same is liable to be set aside. Shri Khamborkar for the non-applicant supported the impugned order and submitted that the Court was within his jurisdiction and within the exercise of his powers under Sec. 126(2) of the Criminal Procedure Code.