At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE SANJEEV SACHDEVA
For the Petitioner: D.P. Kaushik, Advocate. For the Respondent: K.K. Sharma, Advocate.
CRL.REV. P.596/2016 & CRL.M.A.13783-13784/2016
1. Petitioner impugns order dated 15.01.2016, whereby the Trial Court has proceeded ex-parte against the petitioner and listed the case for evidence of the respondent (petitioner before the trial court).
2. Learned counsel for the petitioner submits that petitioner is not seeking to impugn the part of the order which proceeded ex-parte against the petitioner. He is impugning the part of the order which lists the petition for respondent’s evidence.
3. The order dated 15.
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01.2016 reads as follows:
'Notice issued to the respondent on PF has come back unserved with the report that premises was found locked.
Notice issued to the respondent on registered letter come back with the report of refusal.
Petitioner is declared to have served and is proceeded against ex-parte.
Now, to come up for ex-parte petitioner’s evidence on 16.03.2016.'
4. By the said order the Trial Court has noticed that the petitioner has refused to accept the notice sent by the court and accordingly proceeded ex-parte. Learned counsel for the petitioner submits that he has not been given an opportunity to show his bona fide and the Trial Court has fixed date for leading evidence of the petitioner (i.e. respondent herein). This is the part of the order by which the petitioner is aggrieved.
5. The ground raised by the petitioner is that: when on the plain reading of the pleadings, no case is made out; the court should not have placed the matter for evidence. It is further contended that when the Trial Court had more than enough material before it to infer that the complainant had failed to make out a case for maintenance against the petitioner (her husband); it was not open to the Trial Court to post the matter for evidence. It is submitted that maintainability of a proceeding has to be decided at the outset before taking evidence.
6. As noticed above, the petitioner is not impugning the part of the order whereby he has been proceed ex-parte but only that part whereby the case has been fixed for respondents evidence. No revision would lie against the order merely fixing the case for evidence. The Trial Court has not passed any order deciding or adjudicating on the rights of the parties, after proceeding ex-parte, the Trial Court has issued a procedural direction fixing the date for respondent’s evidence (i.e. petitioner before the Trial Court). The Trial Court has not expressed any view on the rights and contentions of the parties.
7. The proceedings emanate out of an application filed by the respondent under section 125 Cr.P.C. claiming maintenance from her husband (petitioner herein). No error has been committed by the Trial Court in fixing the case for evidence of the petitioner (respondent herein).
8. The petitioner who chooses to refuse to accept the summons issued by the court and fails to file his defence or even appear before the trial court to object to the maintainability cannot be permitted to contend that the court should ha