Ramesh v. Esakki Devi

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.08.2018

CORAM:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.R.C(MD)No.329 of 2017 Ramesh : Petitioner/1st Respondent Vs.

1.Esakki Devi 2.Minor.Kabison : Respondents 1 &2/ Petitioners (2nd Respondent is represented by his mother and Natural Guardian Ist Respondent herein) 3.Shanmugam : 3rd Respondent/2nd Respondent PRAYER: Revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, to call for records in M.C.No.62 of 2016 on the file of the Hon'ble Family Court, Tirunelveli, Tirunelveli District and set aside the order dated 02.02.2017. For Petitioner : Mr.A.Thiruvadi Kumar For Respondents : No Appearance (Since Vakalat not pressed)

ORDER

This Criminal Revision case is filed challenging the award dated 02.02.2017 passed in M.C.No.62 of 2016 on the file of the Family Court, Tirunelveli, Tirunelveli District. 2.The only point canvassed by the learned counsel for the revision petitioner is that the case was posted for cross examination of P.W.1 on 01.02.2017. Immediately, after cross examining P.W.1, the revision petitioner/first respondent was directed to mount the witness box to give his evidence. In reference to the Court direction, the revision petitioner mounted the witness box and admitted that he is the owner of the Anandhi Coffee Bar, but denied the allegation that he is the owner of the Anandhi Jewellary Shop and Anandhi Finance. He agreed to pay the amount fixed for maintenance by the Court. There was no cross-examination by the respondents 1 and 2 herein who is the petitioners in M.C.No.62 of

2016. The revision petitioner/first respondent did not close his side, but the Court below has recorded as evidence closed, arguments heard and pronounced the judgment on the very next day, i.e., on 02.02.2017.

3.In support of his submission the diary extract has also been annexed to the typed set of papers. As far as the adjudication dated 01.02.2017, the Family Court has recorded as under: Both present. P.W.1 cross examined. Petitioner side evidence closed. R.W.1 examined. Evidence closed. Arguments heard. Orders by 02.02.2017.

4.This Court finds from the notespaper that the trial Court had not given adequate opportunity to the revision petitioner to let in further evidence and to put forth his arguments. Taking note of the fact that the revision petitioner has deposed that he is ready to pay any reasonable maintenance amount fixed by the Court, the trial Court has concluded the examination of witnesses and passed the order on the very next day.

5.Now, it is contented by the learned counsel for the revision petitioner that without giving an adequate opportunity to put forth his case so as to disprove the contention of the respondents 1 and 2/ petitioners, the Court below might not have awarded Rs.10,000/- as maintenance to his wife and Rs.5,000/- to the minor son. The learned counsel for the revision petitioner would also submit that at the time of admission in compliance with the condition imposed by this Court, he has already deposited Rs.15,000/- in M.C.No.62 of 2016 on the file of the Court below. 6.The notice was served to the respondents, one Mr.Jeyakumaran, learned counsel has filed his vakalat on behalf of the respondents 1 and 2. Today, a memo has been filed by him, stating that the party has received the bundle with consent for change of counsel.

7.Having considered the facts of the case and on perusal of the records, this Court finds that keeping the matter pending, is not going to help either of the parties. Therefore, this revision petition is allowed. The trial Court order dated 02.02.2017 passed in M.C.No.62 of 2016 is set aside. The revision petitioner shall appear before the Family Court, Tirunelveli, on 14.09.2018. On his appearance and after due to notice to the petitioners in M.C.No.62 of 2016, the Court below may commence examination of witnesses and other proceedings.

8.The above order is passed on condition that the revision petitioner herein shall deposit a sum of Rs.35,000/- in M.C.No.62 of 2016 on or before 14.09.2018. On such deposit, the respondents 1 and 2 herein shall be permitted to withdraw the sum along with Rs.15,000/- already deposited. The sum of Rs.35,000/- to be deposited and the sum of Rs.15,000/- already submitted shall be

adjusted towards the maintenance, to be awarded by the trial Court. Sd/ Assistant Registrar(CO) /True copy/ Sub Assistant Registrar(CS-III) To The Judge, Family Court, Tirunelveli, Tirunelveli District.

Crl.R.C(MD)No.329 of 2017 29.08.2018 cp KK/RP/SAR-3/10.09.2018/3P-2C