IMPORTANT POINT
Restoration of petition dismissed for default – Magistrate who has power to dismiss a case for default inherently has power to restore it, upon sufficient cause being shown.

JUDGMENT

The 1st respondent in M.C.36/2022 on the file of the Judicial First Class Magistrate, Kakkanad, filed this O.P under Article 227 of the Constitution of India challenging Ext.P6 order of the learned Magistrate by which the learned Magistrate ordered to restore the M.C. which was dismissed for default. (For the purpose of convenience, the parties are hereafter referred to as per their rank in the M.C.)

2. The petitioners filed the above M.C. under Section 12 of the Protection of Women from Domestic Violence Act (in short, the D.V.Act). Ext.P1 is the copy of the said petition. As per Ext.P3 order dated 30.09.2024, the learned Magistrate dismissed Ext.P1 on the ground that despite several chances given, the petitioners did not turn up for adducing evidence. The petitioners preferred Ext.P4 application under Order IX Rule 9 CPC praying for restoring the M.C. The respondents filed Ext.P5 objection stating that the Magistrate has no review power. Overruling the objection raised by the respondents, the learned Magistrate allowed Ext.P4, as per Ext.P6 order holding that being a welfare legislation, the proceedings under section 12 of the D.V.Act should be liberally construed. Aggrieved by Ext.P6 order the 1st respondent preferred this O.P.

3. Now the point that arises for consideration is the following:

Whether the Magistrate has got the authority to restore a petition under Section 12 of the Protection of Women from Domestic Violence Act, which was dismissed for default?

4. Though notice was served on the respondents, they did not turn up.

5. Before this court also the contention taken by the learned counsel for the petitioner is that the proceedings under section 12 of the D.V.Act is a criminal proceeding and that the Magistrate has no review power. Therefore, according to the learned counsel for the petitioner, the learned Magistrate was not justified in restoring the M.C which was dismissed for default. The learned counsel has also relied upon the decision of this Court in Farhan v. State of Kerala, 2024 (6) KLT 75 in support of his argument that the Criminal Courts have no inherent power and in the absence of any such power, a Criminal Court cannot exercise any power of review, modification or recalling its own order.

6. Though sub-section (1) of Section 28 of the D.V.Act stipulates that the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Cr.P.C, sub-section (2) thereof permits the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. Section 28 of the D.V.Act dealing with the procedure to be followed, under Section 12 of the D.V.Act reads as follows :-

28. Procedure

(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

7. As per section 26 of the D.V.Act, a relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or a Criminal Court affecting the aggrieved person and the respondent. Section 26 of the D.V.Act reads as follows :-

26. Relief in other suits and legal proceedings

(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding b