Saturday, July 19, 2014

Wife NOT explaining 172days delay filing revision looses revision right in DVcase!! Wife sought only residence order & obtained same in lower court !!



Madras High Court

M.Meenakshi vs G.A.Sreenivasan Alias ... on 14 February, 2013

THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14/02/2013

CORAM

THE HONOURABLE Mr.JUSTICE M.VENUGOPAL

Crl.R.C.(MD)No.410 of 2012

M.Meenakshi ... Petitioner

V.

G.A.Sreenivasan alias Manikandan... Respondent

Prayer

Criminal Revision Petition filed under Section 397 r/w 401 of the Code of Criminal Procedure, 1973 praying to call for the entire records relating to the impugned order dated 26.06.2012 made in Crl.M.P.No.3788 of 2012 in Unnumbered C.A.... of 2011 on the file of the Learned Principal Sessions Judge, Madurai and set aside the same by allowing the present Criminal Revision Petition and consequently, direct the Learned Principal Sessions Judge, Madurai to number the main Criminal Appeal and dispose the same on merits and in accordance with law.

!For Petitioner ... Mr.S.Veerasamy

^For Respondent ... Mr.C.Godwin

:ORDER

The Petitioner (Appellant in unnumbered Appeal)/Petitioner has focussed the instant Criminal Revision Petition as against the order dated 26.06.2012 in Cr.M.P.No.3788 of 2011 in Unnumbered C.A. ... of 2011 passed by the Learned Principal Sessions Judge, Madurai.

2.The Learned Principal Sessions Judge, Madurai, while passing the impugned order in Cr.M.P.No.3788 of 2011 in unnumbered C.A.No. of 2011, has, inter alia, observed that '... As per Section 5 of Limitation every day's delay should be properly explained. Further, even as per the averment of the petition, on the memo filed by the petitioner for the relief u/s. 19 of the Act no order has been passed by the court below. Hence it is not conducive to condone the delay of 172 days in filing the appeal. No proper reason has been adduced for such inordinate delay. This court is not inclined to allow this application etc.' and consequently, dismissed the petition.

3.The Learned Counsel for the Petitioner/Appellant (in unnumbered C.A.)/Petitioner submits that the Learned Principal Sessions Judge, Madurai has erroneously dismissed Cr.M.P.No.3788 of 2011 (filed by the Revision Petitioner) and in fact, the delay condonation petition should have been allowed and resultantly, the Learned Principal Sessions Judge, Madurai should have heard the main Appeal itself on merits (after numbering the same) to prevent an aberration of justice and to promote substantial cause of justice.

4.The Learned Counsel for the Petitioner urges before this Court that the trial Court has not followed the procedures and has allowed the prayer in respect of 'Residence Injunction', but negatived the relief sought for under Section 19 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) without mentioning any reasons. Furthermore, the Petitioner has filed a memo requesting the trial Court to proceed with the complaint on merits.

5.According to the Petitioner, the trial Court has not passed any order especially after hearing the arguments. As such, the Petitioner has been under the bona fide impression that the trial Court may pass an order in respect of the other reliefs which have not been granted, but no order has been passed. Under these circumstances, the delay has occurred in regard to the filing of the Appeal as against the order dated 15.03.2011 in Cr.M.P.No.5794 of 2010 (filed by the Revision Petitioner) in allowing the petition by issuing direction under Section 18 of the Act that the Respondent shall not restrain the Petitioner in any way from residing in the address given in the petition.

6.At this juncture, it is useful to refer to the averments made by the Petitioner (Revision Petitioner) in Cr.M.P.No.3788 of 2011 on the file of the Learned Principal Sessions Judge, Madurai wherein it is, among other things, mentioned that the Petitioner sought the reliefs in the main petition Cr.M.P.No.5794 of 2010 on the file of the trial Court under Section 12, 18 and 19 of the Protection of Women From Domestic Violence Act, 2005.

7.Further, the main plea of the Petitioner is that the trial Court has not followed the procedure and allowed the petition under Section 18 of the Act, by granting the relief of residence injunction and dismissed the relief under Section 19 of the Act, without specifying on what ground the petition has been dismissed. Also, that the Petitioner has filed a petition to proceed with the case in accordance with law.

8.It is not in dispute that the Petitioner has filed the Appeal before the Learned Principal Sessions Judge (unnumbered one) as against the order dated 15.03.2011 in Cr.M.P.No.5794 of 2010 passed by the trial Court, with a delay of 172 days.

9.The grievance of the Petitioner is that the trial Court has received the petition/memo and heard her counsel. But till date, no orders have been passed in the memo.

10.The stand of the Petitioner is repelled by the Respondent side to the effect that under the Protection of Women From Domestic Violence Act, 2005 as per Section 29 is an Appeal has to be preferred as against the order dated 15.03.2011 in Cr.M.P.No.5794 of 2010 within 30 days from the date on which the order made by the Magistrate is served on the aggrieved person or the Respondent. In fact, the Petitioner in Crl.M.P.No.5794 of 2010 in Form II [under Rule 6(1)] of Protection of Women From Domestic Violence Act, 2005 has sought orders under Section 18 only in respect of 'Prohibiting respondent from entering into the house of the Petitioner'. As a matter of fact, she has not sought the relief of (a) Protection order; (b)Prohibiting acts of domestic Violence; and Prohibiting the respondent from any form of communication with the Petitioner (under Section 18 of the Act) and in reality, she has scored out these reliefs in Form II annexed with the petition in Cr.M.P.No.5794 of 2010.

11.According to the Learned Counsel for the Petitioner, the Petitioner has scored out the reliefs: (1) An order restraining respondent from dispossessing or throwing out from the house of the petitioner; Entering the portion of the house hold in which the petitioner reside; (2) An order directing the respondent to and remove himself from the house under Section 19 of the Act relating to the Residence Order. In fact, she has also not event sought the other reliefs like monetary relief, custody order and the compensation order under Sections 20 to 22 of the Act. In regard to these reliefs, though Form II under Rule 6(1) annexed with the petition although the same are in printed letters they have not been scored out by the Petitioner.

12.This Court, on perusal of the orders in Cr.M.P.No.5794 of 2010 dated 15.03.2011, is of the considered view that the trial Court, after contest (between the parties), has, ultimately in paragraph 3, granted the relief under Section 18 of the Act in favour of the Petitioner by directing the Respondent that he shall not cause any hindrance/obstruction in regard to the Petitioner residing in the petition mentioned house and consequently, allowed the petition. Therefore, it is quite evident that the trial Court has not passed orders in regard to any of the reliefs under Section 19 of the Act, inasmuch as the Petitioner has not sought any one of them [as seen from the Form II under Rule 6(1) of the Protection of Women from Domestic Violence Act, 2005 which has been enclosed with Cr.M.P.No.5794 of 2010 on the file of trial Court.

13.When that being the factual position, i.e. When the Petitioner has only sought the relief under Section 18 in regard to the passing of the order by the trial Court prohibiting the Respondent from entering into the house of the Petitioner and in fact, when the trial Court has passed orders on 15.03.2011 in Cr.M.P.No.5794 of 2010 by granting only the residence injunction under Section 18 of the Act, then, in strict sense, the Appeal (unnumbered one) sought to be preferred by the Petitioner before the Principal Sessions Judge, Madurai is not per se maintainable in law.

14.A cursory perusal of the index papers of the trial Court submitted by it in Cr.M.P.No.5794 of 2010 shows that in the Notes Paper (docket), it is stated on 26.11.2010 the petitioner has been present and the matter has been adjourned to 10.12.2010 for obtaining the report of the officer. On 10.12.2010, it is stated as 'petitioner present'. Await report. Call on 24.12.2010. On 24.12.2010 it is recorded as petitioner present and await report. The matter has been adjourned to 07.01.2011. On 07.01.2011 on account of absence of the petitioner, the petition has been filed and for awaiting report, the matter has been adjourned to 21.01.2011. On 21.01.2011, Petitioner absent and for awaiting report, the matter has been adjourned to 11.2.2011. On 11.2.2011, the petitioner has been present and for awaiting report, the matter has been adjourned to 25.02.2011. On 25.02.2011, the petitioner has been present and that the matter has been adjourned to 04.03.2011 for awaiting report. On 04.03.2011, the petitioner has been present and the P.O.'s Report has been received and the matter has been posted for orders on 09.03.2011. On 09.03.2011 the petitioner has been present but orders have not been made ready and therefore, the matter has been adjourned to 10.03.2011 for passing orders. On 10.03.2011, the petitioner has been present and suo motu the matter has been reopened for clarification for the relief sought and the matter has been adjourned to 11.03.2011. On 11.03.2011 the clarification has been heard on the side of the petitioner and the matter has been posted to 15.03.2011 for passing orders. On 15.03.2011 orders have been passed.

15.It is to be pointed out that when a Court of Law deals with a condonation of delay petition, when sufficient cause is shown at the appellate stage, the delay in issue ought to be condoned. In fact, at the appellate stage, it is not a question of jurisdiction but a mixed question of law and fact. Under Section 5 of the Limitation Act, 1963, it is for the Petitioner/Applicant/Appellant to satisfy the concerned Court that he has sufficient cause which prevented him from filing the Appeal /Revision in time.

16.Indeed, the condonation of delay is not an empty formality as it vests a right in the opposite party and an order in favour of a party creates a valuable accrued right in his favour and as such, the person seeking condonation of delay is to make out a case for the said purpose, in the considered opinion of this Court. Where no cause has at all been shown, i.e. where no explanation has been given for filing the proceeding out of time, there arises no occasion for considering the sufficiency or otherwise of the reasons for that fact, and there cannot be any room for the exercise of the discretion. If the condition is satisfied, then, the Court of Law gets a discretionary power to grant or refuse the prayer for extension of time. Section 5 of Limitation Act, has to receive a legal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.

17.Be that as it may, in the instant case on hand, in main Cr.M.P.No.5794 of 2010 [Filed under Section 12 of the Protection of Women From Domestic Violence Act] the Petitioner has although stated in the petition that the Hon'ble Court may take cognizance of the petition and pass all and suitable orders and necessary in the circumstances of the case has specified the following:

"Order required U/s.18 protection order

(a) 18(a) prohibit the respondent from committing any act of domestic violence (b)Prohibit the respondent from entering into house of the petitioner (c)Prohibit the respondent from attempting to communicate in any form, whatsoever, with the petitioner including personal, oral or written or electronic or telephonic Contact.

Order required under Section 19 Residence orders

19(a)Restraining the respondent from dispossessing or any in any other manner disturbing the possession of the petitioner from the house.

(b)directing the respondent to remove him and his family from the house of the petitioner.

(c)Restraining the respondent or any of his relatives from entering any portion of the house hold in which the petitioner resides."

18.At the risk of repetition, this Court once again pertinently points out that in Form II under Rule 6(1) of the Protection of Women from Domestic Violence Rules 2006, the Petitioner has only sought one relief viz., orders under Section 18 of the Act 'prohibiting respondent from entering into the house of the petitioner and has struck off the other reliefs sought for either under Section 18 of the Act or under Section 19 of the Act. As such, this Court is of the view that the trial Court has passed orders granting the relief of residence injunction under Section 18 of the Act and allowed the Cr.M.P.No.5794 of 2010 dated 15.03.2011. In effect, the Petitioner has not sought any relief or reliefs under Section 19 of the Act. Therefore, there is no question of Petitioner taking a plea that the trial Court has only partly granted the relief under Section 18 of the Act and dismissed the relief/reliefs under Section 19 of the Act. In strict sense, the Petitioner is not the 'Aggrieved Person' in regard to the orders passed in Crl.M.P.No.5794 of 2010 dated 15.03.2011.

19.It is to be pointed out that when the trial Court has passed orders in Cr.M.P.No.5794 of 2010 dated 15.03.2011, then, filing of memo and awaiting orders from Court do not merit acceptance.

20.It is to be remembered that after passing of the order by a Competent Court in a Criminal Miscellaneous Petition, then, the concerned Court become 'Functus Officio' and only a clerical, incidental or accidental or mathematical error alone can be corrected as provided under Section 465 of Criminal Procedure Code, in the considered opinion of this Court.

21.In any event, the petition for condonation of delay filed by the Petitioner in Cr.M.P.No.3788 of 2011 in unnumbered C.A. of 2011 on the file of Learned Principal Sessions Judge, Madurai is unwarranted and not maintainable in law. Even otherwise the Petitioner has not shown sufficient/good cause in explaining the delay of 172 days that has occurred in regard to the filing of the unnumbered Appeal. Looking at from any angle, the Criminal Revision Petition sans merits.

22.In the result, Criminal Revision Petition is dismissed. It is made clear by this Court that if the Petitioner is desirous of seeking any other relief/reliefs envisaged under Section 18 of the Act or under Section 19 of the Act, it is open to him to file a complete and comprehensive separate petition seeking necessary/appropriate reliefs as per relevant provisions of the Protection of Women from Domestic Violence Act, 2005. It is made clear that the dismissal of the present Revision Petition will not preclude the Petitioner from seeking other reliefs envisaged under the Protection of Women from Domestic Violence Act, 2005 in the manner known to law and in accordance with law, refer the Competent Forum.

Sgl

To

The Principal Sessions Judge,
Madurai.





*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist