Point of Law: No party having knowledge of the case can force the Court to first pass an ex parte order and then claim right to recall the same even when its bona fide is not proved.

JUDGMENT :

(Crl. Misc. Application No.66006 of 2021: Application for Recall of Order dated 4.1.2021)

1. This application is filed by the husband applicant-respondent No.2 to recall the final order dated 4.1.2021 passed in the present criminal revision.

2. By the order dated 4.1.2021, the present criminal revision was decided ex parte against the applicant-respondent No.2, treating service of notice sufficient upon him. By the said order, the maintenance amount granted by the Court below under Section 125 CrPC was enhanced from 1500/- to Rs.3000/-per month with effect from 8.10.2001 (from the date of institution of proceeding) till 14.1.2020 (date on which judgment was passed by the Court below) and from Rs.4000/- to Rs.15,000/-per month from 14.1.2020 onwards, and any amount deposited/paid by the applicant-respondent No.2 in compliance of the order of Court below dated 14.1.2020, was to be adjusted in the said payment. Further, the maintenance from the date of institution of application till 31.1.2021 was directed to be paid in 15 equal monthly instalments starting from 1.3.2021 onwards till the entire amount is paid.

3. I have heard learned counsel for parties on this recall application. Without going into the issue, whether recall application is maintainable in a criminal revision or not, the recall application is decided on merit.

4. The recall application is filed by the applicant-respondent No.2 on 25.3.2021. In the recall application most of paragraphs are with regard to the merits of the case. With regard to grounds and facts for recall of the order learned counsel for applicant-respondent No.2 referred to para 2, para 17 to 19 and para 64 of the affidavit filed in support of the recall application. The said paragraphs state that the applicant-respondent No.2 is not residing on the address on which the notice was sent. In paragraph 17 to 19, the applicant-respondent No.2 has stated that he has not received notice of aforesaid case and thus, could not appear; the notice was deliberately sent to the address where applicant-respondent No.2 is not residing, only to deprive him from appearance in the case; the notice was served upon his nephew (Bhanja) who is not a family member and, therefore, the service is not sufficient as per Section 64 of the CrPC. The Court has wrongly noted, in paragraph 2 of the order dated 4.1.2021 of this Court, that service under Section 64 of the CrPC is sufficient. On the aforesaid grounds, the learned counsel for applicant-respondent No.2 submits that this is a fit case for recall of order as the same is passed without proper service of summons upon the applicant-respondent No.2 as per Section 64 of the CrPC.

5. Opposing the same, learned counsel for petitioner states that service is sufficient upon the Bhanja who is a family member of the applicant-respondent No.2. The applicant-respondent No.2 throughout was aware of the proceedings and he himself admits that there are around 20 different cases pending between him and the petitioner. In such a situation, it cannot be said that applicant-respondent No.2 was not aware of the present proceedings. The applicant-respondent No.2 has nowhere stated that he never resided on the said address. In all the paragraphs, he merely states that "he is" not residing on the said address. In fact, he was at the relevant time residing at the same address. It is further stated that on the notice which was sent to the applicant-respondent No.2, the server has also noted his mobile number and stated that applicant-respondent No.2 is also informed on the said mobile number. This fact is not disputed by the applicant-respondent No.2 or his affidavit or by his counsel during arguments.

6. Chapter XVIII of Part III of The Allahabad High Court Rules, 1952 (Rules of 1952) provides proceedings other than original trials. Rule 9 of Chapter XVIII of Part III of Rules of 1952 provides that if an appeal or revision is not dismissed summarily a day shall be fixed for its hearing and