Chandra Dhari Singh, J
1. The instant criminal revision has been filed by the Revisionist/Petitioner (hereinafter “Petitionerâ€) under Sections 397/401 read with Section 482
of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.â€) seeking revision against impugned order and judgment dated 9th June 2017
passed in CA No. 53/16 (8297/16) under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter “DV Actâ€)
titled ""Ms. Rubina Rathore v. Monish Das & Anr.' passed by learned Additional Sessions Judge/Special Judge (PC Act), (CBI-3), South, Saket
Courts, New Delhi.
FACTUAL MATRIX
2. The disputes are arising out of matrimonial relations between the parties, the Petitioner being the husband and Respondent being the wife. The
marriage between the parties was solemnized on 6th May 2011 according to Hindu rites and ceremonies. Due to the temperamental differences,
Petitioner and Respondent decided to live separately and despite attempts of reconciliation, the relationship ultimately broke down. Subsequently four
FIRs got registered by the Respondent-wife against the Petitioner-husband and his mother. Out of four FIRs, two were registered in Delhi and two
were registered in Udaipur. The complaint case under Section 12 of DV Act has also been filed by the Respondent against the Petitioner and mother-
in-law in the Court of Metropolitan Magistrate-02 (Mahila Court), South District, Saket Courts, New Delhi. The said application was registered as CC
No. 378/1/14 (20.08.2014)/ (464268/2016). Learned Metropolitan Magistrate decided the said compliant ex parte vide judgment and order dated 20th
August 2016. The operative portion of the said judgment reads as under:-
49. Hence, in the present case in the absence of the assets and liabilities of the Respondent no.l having been proved by way of cogent
evidence by the aggrieved, keeping in view the standard of living of the parties as asserted by the aggrieved herself in her pleadings, as
also the fact that the marriage between the parties was an arranged marriage where the standard of the parties is likely to be similar to
each other, the income of the Respondent no.l even by conservative estimates where he is not alleged to be differently abled being a MA
Post Graduate, is presumed to be not less than Rs 75,000/- per month. As the aggrieved was in a domestic relationship with the Respondent
no. 1 with certain savings but without any source of income except income from certain interest income of approx. Rs 10,000/- pm, and is
not possessed of sufficient means of sustaining herself, as also keeping in view that it is the legal duty of the Respondent no.l to maintain
her and the minor child born out of the relationship, therefore, on the scale of balance of convenience, after dividing the income of the
Respondent no. 1 into about five parts with two for the Respondent no. 1, one for the first wife and one each for the aggrieved and her
minor son, I deem it fit to award a sum of Rs.20,000/- per month to the aggrieved as well as Rs 25,000/- towards her minor child by the
Respondent no.l as monetary relief. Needless to mention that this includes rent towards alternative accommodation because aggrieved
despite having a right to reside in the shared household is residing separately therefrom. The amount shall be payable from the date of
filing of the petition till the aggrieved and her minor child becomes dis-entitled for the same as per law.
50. Respondent no.l shall pay the awarded amount directly into the account of the aggrieved upon supplying the details of the bank account
within three weeks from today to the Respondent no.l and filing a copy on record. The amount shall be payable by 10th day of every
English calendar month starting from the next month. The arrears be cleared within the period of six months.
51. The default shall be viewed in terms of the judgment of Hon'ble High Court in Gaurav Sondhi vs. Divya Sondhi-120 DLT(2005)426. Any
maintenance that may have already been paid or has been awarded by any other forum, shall be accordingly adjusted.
52. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: The aggrieved has sought Rs. 50 lakhs as
compensation and further sum of Rs. 1.25 lakhs towards litigation expenses. She has however not led any evidence to prove her entitlement
for the claimed amount in as much as she has not even filed receipts of her litigation expenses. Be that as it may, as it has gone unrebutted
that she has been subjected to domestic violence she is awarded compensation of Rs 15,000/- and litigation expenses of Rs 10,000/- to be
paid by the Respondent no.l to the aggrieved. No grounds exist for granting any other relief in favour of the aggrieved.
53. Application of the aggrieved under Section 12 of the Protection of Women From Domestic Violence Act, 2005 is accordingly disposed
off in the said terms.
54. Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the Respondent no.l is ex-
parte, a copy of this order be served upon him through the Protection Officer.
3. The appeal under Section 29 of DV Act was filed by the Respondent before the Court of Additional Sessions Judge/Special Judge CBI-03 (PC
Act), South District, Saket Courts, New Delhi against the ex-parte judgment dated 20th August 2016 passed by learned Metropolitan Magistrate for
modification and enhancement of the maintenance as awarded. The Petitioner herein, filed the reply in the aforesaid appeal and contended that notices
and summons issued by the Magistrate in the complaint filed by the Respondent were not properly served upon him and the impugned judgment and
orders were passed by the learned Magistrate ex-parte and without hearing the Petitioner. Therefore, the order impugned in the said appeal is liable to
be set aside. It is also contended by the Petitioner herein that without any evidence, his income could not have been presumed to be Rs.75,000/-
(Rupees Seventy Five Thousand) per month. It is also contended in the reply that while calculating the maintenance amount, learned Magistrate had
sought to pay 1/5th out of Rs.75,000/- to the Respondent herein and her minor son, each, but infact, they were awarded Rs.20,000/- (Rupees Twenty
Thousand) and Rs.25,000/- (Rupees Twenty Five Thousand) per month, respectively. The Appellate Court vide order dated 9th June 2017 confirmed
the order dated 20th August 2016 of learned Metropolitan Magistrate. The instant criminal revision petition is preferred against the order dated 9th
June 2017 passed by the Appellate Court.
SUBMISSIONS
4. Ms. Tanya Agarwal, learned counsel appearing on behalf of the Petitioner submitted that the ex-parte judgment passed by the learned Trial Court
was without application of judicial mind and the judgment of Appellate Court upholding the ex-parte award passed by the learned Trial Court was
erroneous, improper and illegal.
5. The learned counsel for the Petitioner submitted that the summons before the learned Trial Court were not served to the Petitioner in accordance
with law and as such the Petitioner was not given a proper and reasonable opportunity to be heard. It is the case of the Petitioner in terms of the
summons served upon him that, firstly, he was not residing at the place where summons were served and moreover, assuming that the Petitioner was
residing at the said place, the service was not made in accordance with the provisions of the DV Act, Cr.P.C as well as the Code of Civil Procedure,
1908 (hereinafter “CPCâ€).
6. Learned counsel for the Petitioner, reiterated the facts of the case to state that vide Order dated 3rd May, 2014, the learned Trial Court directed to
serve the notice to the Petitioner through Registered Courier/Acknowledgement Due (hereinafter “RC/ADâ€) and in compliance of the order the
Process Server was supposed to serve the summons in accordance with the provisions laid down. However, on 14th August, 2014, when he
approached the known residence of the Petitioner and came to know that he was not present at the address and had left for Delhi, he affixed the
summons on the door. The learned counsel for Petitioner submitted that despite the directions of the learned Metropolitan Magistrate, there is no proof
or record to show that service was affected through RC/AD.
7. The learned counsel for the Petitioner opposed the procedure carried out by the Process Server and submitted that according to provisions of the
CPC under Order V Rules 9, 12, 13, 15, 17 and 19, the Process Server was supposed to, first, make all efforts laid down under the CPC to serve the
summons in person to the Petitioner and then only upon his complete inability to furnish the summons in person should have resorted to affixation. She
vehemently submitted that as per the laws laid down under DV Act, CPC and Cr.P.C and various citations, service of summons in person is the rule
and service by affixation is the exception.
8. The learned counsel for Petitioner submitted that Appellate Court did not consider that there are only limited circumstances where service in person
can be dispensed with. When the serving officer has acted with reasonable and due diligence but cannot find the defendant, there is no likelihood of
him returning to his residence and there is no agent or any other person upon whom service can be made, it is only then that the officer shall affix the
copy of the summons on a conspicuous part of the house.
9. Learned counsel for the Petitioner relied on Cohen & Anr vs. Nursing Dass Auddy, (1891) ILR 19 Cal 201, wherein it was held hereinunder: -
“1… It is true that you may go to a man's house and not find him, but that that is not attempting to find him. You should go to his house,
make enquiries, and if necessary, follow him. You should make enquiries to find out when he is likely to be at home, and go to the house at
a time when he can be found. Before service like this can be effected it must be shown that proper efforts have been made to find out when
and where the defendant is likely to be found--not as seems to be done in this country, to go to his house in a perfunctory way, and because
he has not been found there, to affix a copy of the summons on the outer door of his house.â€
10. The learned counsel for Petitioner, further, relied on the decision of Bondla Ramalingam vs. Shiv Balasiddiah, (1978) SCC Online AP 232, which
noted as under:-
“6. …. When he goes for the first time to his house and if he is not found in the house, he has to make efforts as to when he would be
available next time and must try to serve on him.â€
11. The learned counsel for the Petitioner also relied on Hari Narayan & Ors. vs. Topkhana Desh Grah Nirman Samiti Ltd., 1997 SCC Online Raj
18,where it was held as under:-
“3. Close scrutiny of the record reveals that the process server had gone to the house of the Defendant on 8.4.1992, for the final time
and on finding that the defendants had gone out he affixed summons on outer door of their house.
5. In the instant case the process server did not care to use due and reasonable diligence in finding the defendants, without making efforts
to find out as to when the defendants would be available next time and trying the summons on them the process server affixed the summons
on the outer door. … these infirmities cannot be merely termed as irregularities. I am of the considered view that the provisions of Order 5,
Rule 17, CPC have not been complied with by the process server in the instant case.â€
12. In light of the decisions mentioned above, it is submitted the Appellate Court did not consider that the twin conditions mandated under Order V
Rule 17 CPC were not satisfied while serving of summons before the learned Trial Court. She submitted that the Process Server, acting in prudence
and caution, should have made atleast three attempts to find the Petitioner and serve the summons to him in person. It is submitted that there was a
mala fide intent on part of the Respondent to prevent service upon the Petitioner because there was no attempt by the Petitioner to avoid service or
appearance in proceedings of the Court.
13. With regard to the issue of maintenance, the learned counsel for the Petitioner submitted the learned Appellate Court and the learned Trial Court
erred in presuming the monthly earning of the Petitioner to be Rs. 75,000/- (Rupees Seventy Five Thousand only), since, the Petitioner had placed
salary slips, appointment letters and resignation letters which showed the contrary. Moreover, the fact that he had been unemployed since 2010 was
affirmed by the Respondent too and as such the averments made by the Respondent regarding income and assets of the Petitioner were bald
allegations with no documentary evidence to support the same. It was, further, submitted that during the proceedings in bail matters pending before
this Court, vide Order dated 2nd December, 2015, he was directed to pay a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs only) to the Respondent
and which was subject to future adjustment. It is submitted by the learned counsel for the Petitioner that the said 20 lakhs were to be adjusted against
the maintenance awarded to the Respondent by the learned Trial Court.
14. Learned counsel for the Petitioner submitted that the proceedings under DV Act are not similar in nature to those for maintenance under Section
125 Cr.P.C or the Hindu Adoption and Maintenance Act, 1956. The proceedings under DV Act require a finding that the husband is guilty of domestic
violence and only then the Magistrate could proceed to adjudge upon the reliefs sought by the wife. It is submitted that not affording an opportunity of
hearing in domestic violence proceedings had serious ramifications and caused grave prejudice to the husband.
15. Upon enquiry by this Court regarding filing of any application/appeal for setting aside the impugned judgment of the learned Trial Court dated 20th
August, 2016, the learned counsel for the Petitioner submitted that although such an application or appeal was not filed, however, before the learned
Appellate Court one of the prayers seeking setting aside of the said judgment was made in the reply. Learned counsel, referring to paragraphs 19 to
21 of the impugned judgment, submitted that since, there was a specific prayer clause seeking setting aside of the order dated 20th August, 2016, and
the learned Appellate Court had given observations in light of the said prayer as well, the reply was treated as cross-appeal.
16. Learned counsel for the Petitioner submitted that the DV Act, being a special Act, does not provide a provision in accordance of which an
application for setting aside ex-parte order may be made. Since, there is no provision under the DV Act, one has to rely on Cr.P.C for making such an
application. It is submitted that Section 362 Cr.P.C enables filing of recall/review only to correct a clerical or arithmetical error and even Section 25
(2) of the DV Act, also gives a limited scope to the Magistrate to alter, modify or revoke any order on the ground that there are changes in
circumstances.
17. The learned counsel for the Petitioner further, relied on the Order 41 Rule 33 CPC, and the cases of State of Punjab vs. Bakshish Singh, (1998) 8
SCC 222, and Pralhad & Ors vs. State of Maharashtra & Anr (2010) 10 SCC 458, to submit that the powers of Appellate Court are wide enough to
pass any decree and make an order even in instances where there is no appeal or cross-objections filed the Respondents. It is submitted that the
protection under Order 41 Rule 33 of CPC cannot be denied mere on the ground of non-filing of any appeal. It is submitted that in view of the
aforesaid discussions, it is crystal clear that the Appellate Court committed grave error and illegality while passing the impugned order, therefore, it
deserves to be set-aside.
18. Per contra, Mr. Arvind Chaudhary, learned counsel appearing on behalf of the Respondent vehemently opposed the contentions and arguments
made by the Petitioner.
19. Learned counsel for the Respondent assailed that the conduct of the Petitioner throughout the proceedings of the case before the learned Trial
Court and the Appellate Court has been in gross abuse of the rights granted to him under law. It is submitted that the Petitioner had only appeared
before the learned Trial Court at the time when the matter was listed for orders and not before that. Learned counsel for the Respondent pointed out
order of the learned Trial Court, dated 29th September, 2014, 18th October, 2014, 24th January, 2017, 25th April, 2017, wherein it was observed on
various accounts that the Petitioner or his counsel had failed to appear or abide by the orders of the learned Trial Court regarding filing of pleadings,
furnishing of residential details etc. Opposing the averments made by the Respondent, learned counsel for Petitioner submitted that the conduct of the
Respondent had also been objectionable throughout, since, she had filed multiple complaints against the Petitioner but chose to remain silent about the
DV proceedings, which exhibited the intention of the Respondent of preventing appearance of the Petitioner before the Court.
20. Learned counsel for the Respondent further submitted that the Petitioner, acting most perjuriously, presented a forged judicial document, that is,
the decree of divorce from his first marriage, on pretext of which he married the Respondent, and by the same his fraudulent intentions and motive of
extorting money out of the Respondent was apparent.
21. Learned counsel for the Respondent reiterated the fact that a considerable amount of more than Rs. 50,00,000/- (Rupees Fifty Lakhs only) was
borrowed by the Petitioner on account of starting up a new business, however, neither was the business ever set up nor was the money ever returned
to the Respondent thereafter.
22. The learned counsel for the Respondent submitted that since, an application or appeal was never filed against the judgment dated 20th August
2016 at any stage, the Petitioner has not evoked the jurisdiction of this Court in due and proper manner and in accordance of law. It is further
submitted that there is no illegality in the order and judgment passed by the Appellate Court and the Petitioner has failed to point out any error
apparent on record in the impugned judgment and order. Therefore, the Revision Petition is devoid of any merit and is liable to be dismissed.
ANALYSIS AND FINDINGS
23. Heard the arguments and submissions made by both the parties at length and perused the records, including the Revision Petition and written
submissions.
24. At the very first instance, it is pertinent to restate that as a Court exercising Revisional Jurisdiction under Sections 397/401 of Cr.P.C, this Court
will restrict itself to the question of correctness, legality and propriety of the judgment passed by the Appellate Court. This is not a stage where this
Court will appreciate evidence or go beyond the judgment and findings of the Appellate Court.
25. It is apparent from the lower court records that the Petitioner had been abstaining from appearing before the learned Trial Court during the course
of proceedings under the DV Act. The learned Trial Court had at various occasions noted the absence of the Petitioner before the Court and gave
enough opportunities to the Petitioner to appear before the Court and make his representation. However, the Petitioner failed to appear and this
indisposition indicated that he had been attempting to flee from justice. Though, the conduct of the parties cannot be the sole ground for this Court for
deciding the instant revision, however, the same cannot not be completely overlooked as well, especially, when it can be seen that the Petitioner has
not taken any appropriate steps at the right occasion within the purview of limitations available to him under the law and now after five years of
pending litigations has, under the garb of CPC and Cr.P.C conveniently, raised an objection to the decision of the learned Trial Court, decided against
him.
26. One of the other main contentions of the learned counsel for the Petitioner has been that the reply filed to the Appeal of the Respondent before
the Appellate Court was treated as a cross-appeal, based on the prayer made by the reply. For this submission, learned counsel for the Petitioner also
relied on several judgments and provisions of the CPC to assail that the degree and scope of powers a Court while exercising Appellate powers, under
Order 41 Rule 33 of the CPC, are wide enough to exempt non-filing of the setting aside of order or appeal by the parties before the Appellate Court
and be heard despite the same.
27. To decide upon this argument, it is necessary to understand the nature of the powers provided to the Appellate Courts under Order 41 Rule 33 of
the CPC. The Hon’ble Supreme in Rameshwar Prasad vs. Shambehari Lal Jagannath, (1964) 3 SCR 549 has observed as under: -
“50. … Rule 33 really provides as to what the appellate court can find the appellant entitled to. It empowers the appellate court to pass
any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only
to the nature of the decree or order in so far as it affects the rights of the appellant. It empowers the appellate court to pass or make such
further or other decree or order as the case may require. The Court is thus given wide discretion to pass such decrees and orders as the
interests of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the
adjustment of rights of the various parties.â€
28. The Hon’ble Supreme Court in Nirmala Bala Ghose vs. Balai Chand Ghose, (1965) 3 SCR 550, has discussed the powers under Order 41
Rule 33 and have observed as under: -
“23. … The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where
interference in favour of the appellant necessitates interference also with a decree has by acceptance or acquiescence become final so as to
enable the Court to adjust the rights of the parties…. The rule however does not confer an unrestricted right to re-open decrees which
have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.â€
29. In Mahant Dhangir vs. Madan Mohan, 1987 Supp SCC 528, the Apex Court laid down as under: -
“15. …The Appellate Court could also pass such other decree or order as the case may require. The words “as the case may be
require†used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends
of Justice. What then should be the constraint? … The only constraint that we could see, may be these: That the parties before the lower
court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower court. It is true
that the power of the Appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all
questions urged in order to render complete justice between the parties.â€
30. The Hon’ble Kerala High Court in MM Philip vs, Kerala State, 2009 SCC Online Ker 5840 has noted as under: -
“22. Rule 33 of Order XLI of the Code of Civil Procedure is based on the principle that the appellate court should have the power to do
complete justice between the parties. It also aims to avoid contradictory decrees. The Rule confers wide discretionary power on the
appellate court. However, the discretion is to be exercised with great care and caution. No hard and fast rule can be laid down in the matter
of exercise of the power. Each case must depend upon the facts of the case….â€
31. From the bare reading of the abovementioned judgments, it is clear that the power given to Appellate Courts under Order 41 Rule 33 is
discretionary and exceptional. It cannot be said that if an Appellate Court refuses to exercise its powers under Order 41 Rule 33, it is in gross illegality
or violation. The Code does not necessitate exercise of the power but gives amplitude discretion to the Appellate Court, to consider the matter based
on the facts and circumstances and then if it finds fit, to allow or disallow the plea under Order 41 Rule 33. In the present case also, the Appellate
Court, had the option to exercise power under Order 41 Rule 33 but irrefutably, it was just an option and not an obligation. This Court, therefore, does
not find force in the argument of the Petitioner that if the Appellate Court has not allowed the prayer of the Petitioner to treat the reply filed by the
Petitioner as a cross-appeal, it amounts to gross illegality.
32. It is also important to understand that while the CPC, or the Cr.P.C, is required to steer the legal procedures in the country, it cannot be the one
right answer to all the questions. For over hundred years, litigants and professionals have been guided by the CPC over the technicalities and
fundamentals laid down under it, that allow them to exercise their rights to the greatest extent, while being within the ambit of properly laid down
procedure. The Courts, also, are able to approach any dispute with much comprehension and detail relying on the procedure laid down in the Code.
The CPC is, undoubtedly, a lengthy, elaborate, complex and extensive Code for procedure but it should not be the case that the parties after years of
matter being pending keep on approaching the Court citing one provision or the other for the sole reason of exhausting their options which they had
previously waived or chosen not to exercise. It is found that litigants resort to exhausting all and any provisions they may find in the Code, be it civil
procedure or criminal, but in doing so they lose sight of the prejudice to the rights of their clients. In the present matter also, the Petitioner had ample
opportunity to exercise the rights conferred to him in due timely and orderly manner by approaching the Court as and when he was aggrieved of the
order of the learned Magistrate, but instead he chose to not take an action relying on the protection that he could have under the said Order 41 Rule
33. At this belated stage, after a considerable time has passed, the need for challenging findings of the Trial Court or the Appellate Court is found to
be futile as the Appellate Court was not wrong in questioning the Petitioner on the actions taken by him to set aside the order of the Trial Court.
33. On the issue of service of summons upon the Petitioner under the DV Act, it is found that since the Petitioner has not challenged the ex-parte
order passed by the learned Metropolitan Magistrate at any stage, it attained finality. Now, at this stage, he cannot take the ground of improper service
of summons upon him in the Revisional Jurisdiction after lapse of five years.
34. This Court shall not further investigate or adjudicate into amount of maintenance awarded as the same has again been considered at length by the
lower Courts by examining all documents and records, including the income and assets affidavit and at this stage, this Court may not be apprised of the
evidence for correctness of calculation of the amount of the maintenance.
CONCLUSION
35. After taking in view all the facts and circumstances of this case, arguments advanced as well as the perusal of pleadings, this Court does not find
any gross-illegality or impropriety in the findings and analysis of the Appellate Court.
36. The Appellate Court, vide its judgment dated 9th June 2017, has taken the right view in light of the circumstances present before it. This Court
does not find any substantial ground for invoking the Revisional Jurisdiction to interfere with the impugned judgment. In view of the above, this revision
petition is dismissed as the same is devoid of any merit. No order as to cost.
37. All pending applications stand disposed of.
38. The judgment be uploaded on the website forthwith.
