GULAM NABI Vs. MST. MAJIDAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated April 5, 1990, passed by the Sessions Judge, Churu, in Criminal Revision Petition No.25 of 1985 {Gulam Nabi v. Mst. Majidan).

(2.) MST . Majidan filed an application Under Section 125 Cr. P.C. in the Court of the Munsif and Judicial Magistrate, Sujangarh, against Gulam Nabi (her husband) for grant of maintenance on March 28,1980. This application, filed by Mst. Majidan, was allowed by the learned Judicial Magistrate, Sujangarh by his order dated November 28,1981. Dissatisfied with the order passed by the learned Judicial Magistrate, the husband Gulam Nabi preferred a revision -petition before the learned Sessions Judge, Churu, and that revision was allowed by the learned Sessions Judge by his order dated January 6,1984. While allowing the revision petition, the learned Sessions Judge set -aside the order passed by die Munsif and Judicial Magistrate, Sujangarh, and remanded the case to the Court of the Munsif and Judicial Magistrate, Sujangarh, with the directions to pass an order on the application after giving an opportunity of hearing to the parties concerned and directed the parties to appear before the learned Munsif and Judicial Magistrate on February 13,1984. The petitioner Gulam Nabi did not appear before the learned Magistrate on the various dates fixed by the Court and the learned Magistrate, therefore, by his order dated March 26,1984, revived his earlier order dated November 28,1981, by observing that as Gulam Nabi did not appear before the Court in pursuance of the order dated January 6,1984, passed by the Revisional Court, therefore, the order dated November 28, 1981, shall remain effective. Against this order, the petitioner Gulam Nabi filed a revision petition before the learned Sessions Judge, Churu. The learned Sessions Judge, by his order dated April 5,1991, dismissed the revision petition filed by the petitioner and it is against this order that the present revision petition has been filed.

(3.) WHEN the order dated November 28,1981, passed by the learned Munsif and Judicial Magistrate, First Class, Sujangarh, was set - aside by the learned Sessions Judge by his order dated January 6, 1984, in the revision and the learned Judicial Magistrate was directed to decide the case after giving an opportunity of hearing to the parties, then the Judicial Magistrate was expected to have passed a fresh order. The order which has been set -aside by the Revisional Court, cannot be restored by the Judicial Magistrate by his own order. The law requires that when an order has been set -aside by the Revisional Court or the Appellate Court then the Court should pass a fresh order after hearing the parties in accordance with the directions given by the Appellate or Revisional Court. If the parties did not appear after the remand of the case, even in such circumstances the Court has to pass a fresh order and cannot resort to revive an order which was already set -aside by the higher Court. The order passed by the learned Judicial Magistrate was, thus, deserves to be quashed and set -aside.