IMPORTANT POINT
An appeal may be preferred under Section 29 of the Act. At the same time, it is open to the aggrieved party seek for remedy under Section 25 of the Act before the same Court. Neither Section 25(2) excludes the right of the party under Section 29 of the Act to prefer an appeal nor Section 29 prevents the party from seeking the remedy under Section 25(2) of the said Act. At the same time for invoking provision under Section 25(2), there must be a change in the circumstance after the order being passed.

ORDER

T. Sudanthiram, J.— The revision petitioner herein is the husband of the first respondent herein and father of the second and third respondent. The first respondent herein filed an application before the learned Judicial Magistrate II, Puducherry, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Section 18 of the said Act. She also filed an interim application in Crl. M.P. No.1700 of 2007 under Section 23(2) of the said Act. In the said petition, the relief’s sought for by the first respondent are as follows:

“(a) restraining the respondent and his men from committing any act of domestic violence.

(b) restraining the respondent and his men from dispossessing or in any other manner disturbing the possession and enjoyment of the house by the complainants, where they are living at. No.22, First Cross Street; Ezhil, Nagar (North), Puducherry-8.

(c) directing the respondent to remove himself from the house of the complainant.

(d) restraining the respondent and his men from alienating or disposing off the house of the complainant in any manner.”

2. After notice being given to the petitioner herein as he had not filed any counter, the learned Magistrate after recording that no counter was filed, allowed the petition on 11.12.2007 in Crl. M.P. No.1700 of 2007 and granted interim relief as prayed for. Then on the very same day, the petitioner herein filed an application in Crl. M.P. No.543 of 2008 under Section 25(2) read with 23(2) of the said Act, seeking for the revocation of the order already passed. The respondent herein also filed counter in that application and the learned Magistrate after hearing both parties, passed an order on 23.9.2008, modifying the earlier order permitting the petitioner herein to reside in the shared household without committing any act of violence against the respondent herein. The other interim relief order granted under Clause-a, b and d in Crl. M.P. No.1700 of 2007 were made to remain as it is.

3. The respondents herein aggrieved by the modification order of the learned Judicial Magistrate, preferred an appeal before the Sessions Judge, Puducherry under Section 29 of the said Act in Crl. A. No.24 of 2008. The learned Sessions Judge, allowed the appeal filed by the respondents herein, observing that no appeal has been filed under Section 29 of the Act by the petitioner herein and it has to be taken that he had not challenged the interim order passed by the learned Judicial Magistrate under Section 22(3) of the Act and the learned Magistrate had no power to modify his own order by exercising his power under Section 25 of the Act, since there was no change in the circumstances. Aggrieved by the order of the learned Principal Special Judge, Puducherry, the petitioner herein has preferred this revision petition before this court.

4. The learned counsel for the petitioner submitted that originally interim order passed by the learned Magistrate on 11.12.2007 was only an ex parte order and the learned Magistrate had ample power to alter, modify or revoke the earlier order under Section 25(2) of the said Act. Though no counter was filed by the petitioner herein on that day, without hearing the petitioner herein, a stringent order has been passed by the learned Magistrate to remove him from the shared household and that order require a reconsideration and therefore after hearing the petitioner herein, the learned Magistrate only modified the order. The learned counsel for the petitioner herein further submitted that the main petition is pending and while, so without hearing the petitioner, the interim order has been passed causing great hardship to him and he had been particularly thrown out of the household and even that order being set right by the learned Judicial Magistrate himself,’ the learned Sessions Judge had erroneously allowed the appeal against the principles of natural justice.

5. The learned counsel for the petitioner reiterated that the appl