1. Heard learned counsel for the parties.
2. Rule. Rule made returnable forthwith. With the consent of the parties matter is taken up for final hearing.
3. By the present petition filed under Article 226 and 227 of the Constitution of India, petitioner (original non applicant) has prayed that impugned order dated 20.6.2009 at exhibit 'B' filing along with present petition and impugned order dated 26.6.2009 below Exhibit 11 passed by learned Judicial Magistrate First Class Kalamnuri, District Hingoli be quashed and set aside and say of the petitioner may be accepted.
4. It is the contention of the petitioner that present respondents/original applicants filed Criminal Miscellaneous Application No. 151/2008 before learned Judicial Magistrate First Class Kalamnuri praying for maintenance from the petitioner under section 125 of Criminal Procedure Code. It is also contention of the petitioner that upon receipt of notice, he appeared in the said matter and engaged advocate and sought time to file say. It is further contention of the petitioner that case was fixed for filing say of the petitioner but the petitioner was absent as he was suffering from gastro as well as his advocate also remained absent. Hence, learned Judicial Magistrate First Class Kalamnuri passed an order "Non applicant and his advocate absent, no any application, application to proceed without say of non applicant." Accordingly matter was posted on 26.6.2009. It is the contention of the petitioner that on 26.6.2009 advocate for the petitioner filed an application at Exh.11 praying for setting aside 'no say' order and praying time to file say and say could not be filed because of absence of the petitioner as he was ill. However, said application also came to be rejected by learned Judicial Magistrate First Class Kalamnuri by passing order "The application is not annexed with the say/Ws of non applicant. Hence, not tenable, therefore rejected."
5. Accordingly, it is the contention of the petitioner that learned Judicial Magistrate First Class Kalamnuri proceeded in the matter with undue haste, without appreciating genuine difficulty of the petitioner. Petitioner also contends that reason stated by the petitioner i.e. illness by gastro was beyond control of the petitioner. Hence, it is the contention of the petitioner that considering the said genuine reason, opportunity ought to have been given to the petitioner by granting his application by giving opportunity to him for filing say. Petitioner further contends that his say is ready and he is willing to file say on any specific date directed and permitted by this Court. Hence learned counsel for the petitioner submits that present petition be allowed for the prayers as stated hereinabove.
6. Learned counsel for the respondents opposed present petition vehemently and submitted that even after service of notice of the Miscellaneous Criminal Application No.151/2008 the petitioner herein did not appear before the Court. Accordingly, he appeared before the Court after about 6 months on 6.5.2009 thereafter petitioner remained absent before the Court on the adjourned date i.e. 23.5.2009. Moreover, petitioner and his advocate were absent before the Court on 20.06.2009, and therefore impugned order of "No Say" came to be passed against him. Thereafter on 26.6.2009 since petitioner did not annex his say along with application to cancel no say order, said application came to be rejected on 26.6.2009. Thus learned counsel for the respondents submits that orders passed by learned Judicial Magistrate First Class Kalamnuri on 20.6.2009 and on 26.6.2009 have been passed properly and no interference therein is warranted. Accordingly, learned counsel for the respondents supported both the impugned orders.
7. After considering rival submissions advanced by both learned respective counsel for the parties, it appears from the certified copy of the, roznama produced by learned counsel for petitioner and marked as document 'X', that petitioner herein appeared before learned trial court on 6.5.2009, and even on next date i.e. 23.5.2009 the respondents and their advocate were also absent before the court, and consequently, on 20.6.2009 order of 'No say' came to be passed against petitioner herein and further on 26.6.2009 since petitioner herein did not annex say along with the application with prayer to set aside no say order, it was not considered and same was rejected. It appears from the aforesaid dates that, apparently, petitioner has not tried to protract the matter deliberately. Hence, passing of order of 'No Say' immediately on 20.6.2009 when the petitioner had recently appeared in the matter on 6.5.2009, appears to be hyper technical and hasty ; since the vital and substantive rights of the petitioner are involved in the matter. Moreover, as regards the order dated 26.6.2009, the ground of illhealth specifying the ailment i.e. Gastro from which the petitioner was suffering should have been considered sympathetically, and rejecting his application for setting aside order of no say only because it was not annexed with say appears to be harsh. Moreover, principles of natural justice require that opportunity be given to the petitioner to put forth his defence before the learned trial court to enable the trial court to do substantial justice to the parties, and therefore present petition deserves to be allowed and impugned orders dated 20.6.2009 and 26.6.2009 deserve to be quashed and set aside with specific direction to the petitioner to appear before learned trial court and to file his say on the said date subject to payment of costs of Rs.2,500/ by the petitioner to respondents and with further specific directions to both the parties not to seek adjournment without any unavoidable reason and to cooperate with the court to decide the matter, expeditiously and with further directions to learned judge to decide the matter within the reasonable specified time frame, as mentioned below.
8. In the result, present petition is allowed in terms of prayer clause 'B' thereof and impugned order dated 20.6.2009 as well as impugned order dated 26.6.2009 passed by learned Judicial Magistrate First Class, Kalamnuri District Hingoli stand quashed and set aside subject to payment of costs of Rs. 2,500/ by the petitioner to respondent. Parties are directed to remain present before learned trial court on 23.8.2010 and the petitioner shall file his say/w.s. on the said date positively, without fail. Learned trial judge is directed to conduct hearing of the said matter expeditiously and to decide it within the period of six months from 23.8.2010. Parties to cooperate with the court and not to seek adjournment, without any unavoidable reason.
9. It is seen from the proceeding that petitioner has deposited amount of Rs.5,000/ in this Court and out of said amount Rs.2,500/ be paid to the respondents towards costs and balance amount of Rs.2,500/ be remitted to the trial court and learned trial judge to decide about the payment of said amount to the parties, while deciding the said application No.151/2008.
10. Rule is made absolute in aforesaid terms.