CRR No.1064 of 2014 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl.
Revision No.1064 of 2014 (O&M) Date of Decision: April 22, 2014.
Kanupriya Sinha ..........PETITIONER(s).VERSUS Anant Prakash Sinha and others ........RESPONDENT(s).CORAM:- HON'BLE Mr.JUSTICE SURINDER GUPTA Present: Mr.Prabhjit Jauhar, Advocate with Mr.Deepak Jain, Advocate for the petitioner (s).Mr.Sunil Chadha, Sr.Advocate with Ms.Vandna Malhotra, Advocate for the respondents.
******* SURINDER GUPTA, J.(Oral) CRM No.12463 of 2014 Application is for placing on record Annexures P-5 to P-9.
The same are taken on record subject to all just exceptions.
Criminal misc.
application stands allowed.
CRM No.12276 of 2014 Application is for placing on record short reply on behalf of the respondents.
The same is taken on record subject to all just exceptions.
Criminal misc.
application stands allowed.
Mehta Sachin 2014.04.24 10:18 I attest to the accuracy and integrity of this document CHANDIGARH CRR No.1064 of 2014 -2- CRR No.1064 of 2014 Petitioner Kanupriya Sinha is wife of respondent No.1 and both are residing in House No.D-87, South City-1, Gurgaon.
There is matrimonial dispute in between the parties which triggered various litigations including the one filed under the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act') bearing Domestic Violence Case No.10 of 2013 filed in the Court of learned Judicial Magistrate, Gurgaon.
In that case, on the application of the petitioner under Section 12 of the Act, the trial Court passed the order dated 25.01.2014, the operative part of which reads as under:- “Apart from it, lodging of FIR prima facie shows threat at the hands of the respondent to the petitioner, hence, protection order under Section 18 is hereby passed and respondent no.1 is hereby restrained from coming at the fiRs.floor of the shared household wherein the petitioner is residing.
A copy of this order be supplied to the petitioner free of cost, a copy to the police in charge of the concerned police station, GGN and to the protection officer be supplied as mandated by Section 24 of the D.V.Act.”
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Not satisfied, the respondents filed an appeal, which was allowed vide order dated 05.02.2014 passed by the Additional Sessions Judge, Gurgaon with the observations and directions as follows:- “8.
After hearing learned counsel for the parties and going through the record of the case, this court is of the considered opinion that the order passed by the learned trial Court is not sustainable.
The basic thing Mehta Sachin 2014.04.24 10:18 which has to be observed by every public authority, and I attest to the accuracy and integrity of this document CHANDIGARH CRR No.1064 of 2014 -3- more so by the courts are the principles of natural justice.
As per the record, the application was filed on 21.01.2014.
It was ordered to be taken up on the date fixed i.e.25.01.2014.
No notice of the same was issued to the non applicants for the date fixed.
On the date fixed the order under challenge was passed restraining the appellant no.1 from entering the shared household and the application was disposed of.
No opportunity was given to the appellant to rebut the contentions of the respondent.
Atleast the order does not mention any such opportunity having been granted or any statement having been given by learned counsel for the appellant that he did not wish to file any reply.
The appellants are on affidavit to state that no such opportunity was granted.
In the considered opinion of this court, learned trial court decided the application without following the proper procedure.
Whether such an order could have been passed or not is not required to be gone into since the order is not sustainable being violative of principles of natural justice.
Still further learned trial court did not grant or decline the other reliefs sought by respondent/complainant.
9.
Since this court has found that the order under challenge is not substantial since it is violative of principles of natural justice, the other merits are not being gone into.
10.
In view of the above, the present appeal is allowed and the order dated 25.01.2014 passed by the trial Court is set aside.
The respondent/complainant is however at liberty to move another application on the same cause of action, if so permitted under law.
However, the undertaking given by the appellant before Mehta Sachin 2014.04.24 10:18 I attest to the accuracy and integrity of this document CHANDIGARH CRR No.1064 of 2014 -4- this court shall remain in force.”
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This petition has been filed against the said order of learned Additional Sessions Judge, Gurgaon.
I have heard learned counsel for the parties and perused the file with their assistance.
Before proceeding further, it would be relevant to note certain undisputed facts: (i) In Domestic Violence Case No.10 of 2013, the petitioner moved an application under Section 12 of the Act (Annexure P-3) seeking various reliefs.
(ii) The application was submitted before the trial Court on 21.01.2014.
(iii) The application was taken up on 25.01.2014, the date fixed in the main case and the order, operative part of which has been reproduced above, was passed on the same day.
(iv) Before passing the order, neither the case was adjourned for taking the reply of the respondents on the application nor any prior notice was issued.
Learned counsel for the petitioner has argued that the counsel for the respondents had appeared on 25.01.2014 and he was given the copy of application filed by the petitioner before the same was decided on the same day.
Learned counsel for the respondents, however, dispute this fact.
It has been submitted by learned counsel for the petitioner that reply of the application has now been filed by the respondents, as the Mehta Sachin 2014.04.24 10:18 I attest to the accuracy and integrity of this document CHANDIGARH CRR No.1064 of 2014 -5- other reliefs being claimed by the petitioner are yet to be decided by the trial Court.
Learned counsel for the petitioner as well as learned counsel for the respondents have no objection if the trial Court after considering the reply filed by the respondents decide the application of the petitioner filed under Section 12 of the Act afresh even for the relief allowed vide order dated 25.01.2014, not influenced by that order or the order dated 5.2.2014 passed by the appellate Court.
It has been submitted by learned counsel for the respondents that father of respondent No.1 has since expired and now, he has to keep his mother in his house and take care of her.
The respondents will be at liberty to take all type of pleas, including the one mentioned above, before the trial Court.
This petition is disposed of with direction that the trial Court will decide the application under Section 12 of the Act for all the reliefs claimed therein afresh within 15 days of receipt of this order.
Till then, the order passed by the trial Court dated 25.01.2014 shall continue.
The order dated 25.01.2014 shall be treated as interim order and the petitioner shall not be required to move another application as observed in para No.10 by the appellate Court in its order dated 5.2.2014.
Copy of this order be sent to the District and Sessions Judge, Gurgaon through fax.
( SURINDER GUPTA ) April 22, 2014.
JUDGE Sachin M.
Mehta Sachin 2014.04.24 10:18 I attest to the accuracy and integrity of this document CHANDIGARH