Setting aside ex-parte proceedings does not automatically set aside ex-parte interim maintenance; both must be clearly delineated.

JUDGMENT

Swarana Kanta Sharma, J. The present petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") praying for setting aside impugned order dated 17.11.2017 passed by the learned Additional Principal Judge (APJ), Family Courts, Shahdara, Delhi and seeking issuance of directions to the learned Judge, Family Court to pass orders afresh on interim maintenance on merits of the case.

2. The question that arises for consideration is that in case an order is passed setting aside ex-parte proceedings, whether relief of granting ex-parte interim maintenance vide the same order, will also be automatically set aside or not.

3. The brief facts of the case are that the respondent No.2/wife herein had filed an application seeking maintenance from the petitioner/husband herein on 03.06.2014.

4. On the date fixed for appearance of the petitioner/husband i.e. 01.12.2014, since he did not appear despite service of notice, he was proceeded ex-parte. On the said date, the following order was passed by the learned Principal Judge-Family Courts which reads as under:

"...Present: As above.

Respondent is proceeded ex-parte.

Heard petitioner on application seeking interim maintenance. According to the petition respondent is earning more than Rs.40,000/- per month. There is no challenge to this averment. I, therefore, allow the application seeking interim maintenance. Respondent is directed to pay a sum of Rs.10,000/- per month, month by month to petitioner till disposal of the petition.

Put up for PE on 26.09.2015..."

5. Pursuant to the same, the learned counsel for the respondent/husband (petitioner herein) had moved an application under Section 126(2) Cr.P.C. for setting aside ex-parte order. The ex-parte order was set aside by the learned Principal Judge, Family Courts on 03.10.2016.

6. Thereafter, the case was transferred on administrative grounds to another Family Court, Shahdara District, Karkardooma Courts, Delhi. The impugned order before this court was passed by the learned Judge, Family Court (transferee Court). In the impugned order dated 17.11.2017 the learned Judge held that there was no need to hear arguments on application for interim maintenance as though an order had been passed setting aside ex-parte proceedings dated 01.12.2014, the order granting maintenance on the same date vide the same order were not specifically set aside.

7. The learned Judge-Family Court held as under:

"...The copy of the order dated 03.10.2016 was given to both the parties. If this above order is read and taken into consideration, then it shows that only the order to proceed exparte was set aside and the order regarding disposal of interim maintenance application was not changed nor this application was got revived or ordered to be reconsidered. Even the prayer made in the application u/s 126 (2) Cr.P.C. of the respondent is pertaining to setting aside the exparte order and not the order of deciding interim maintenance application.

It appears that inadvertently the case was again fixed for arguments on the interim maintenance application by my Ld. Predecessor before the case was transferred to this court on the last date of hearing. When infact this interim maintenance application was already decided on 01.12.2014 and even clarification was given on the same on 21.02.2015, then the same is not required to be reconsidered again. This order of fixing interim maintenance was not set aside through the order dated 03.10.2016 and only the exparte proceeding was set aside by my Ld. Predecessor. Thus, when there is no interim maintenance pending as on date, then there is no requirement to pass any fresh order..."

8. Aggrieved by this order the present petition was filed praying for setting it aside.

9. Counsel for the petitioner argued that since the entire ex-parte order dated 01.12.2014 was set aside, it included se