A party must be afforded the right to be heard and present evidence before any dismissal of their application, underscoring procedural fairness.

ORDER

The applicant has challenged the impugned judgment and order dated 12.07.2019 passed by the learned Judge, Family Court, Court No.3, Ahmedabad in Criminal Misc. Application No. 3061 of 2018. Heard learned advocate for the applicant.

It was submitted by learned advocate for the applicant that an application preferred under Section 127 of Code of Criminal Procedure, 1973 (In short “ Cr.PC”) by the present applicant on 25th September 2018 was erroneously dismissed by the Family Court without giving any opportunity of hearing to the present applicant and it is further submitted that matter preferred by the present applicant was kept for hearing on 19th March, 2019, 2nd May 2019 and 3rd June 2019. But, on 12th July 2019, application was dismissed for default by the learned Judge. That previously, applicant was forced upon to pay the dues without giving him the opportunity of hearing and instead of hearing the proceedings under Section 128 of Cr.PC, the applicant was only asking on every date to pay the amount either to his lawyer. It is further submitted that infact lawyer requested in proceedings under Section 125 (3) of Cr.PC to club the mater filed under Section 125 (3) and 127 of Cr.PC pending before same Court. However, assurance was given to advocate that on 27th June 2019, advocate would be heard.

Thereafter, the applicant was sentenced for 210 days and he was in prison for non payment of Rs. 1,40,000/- under Section 125 (3) of Cr.PC. That, opportunity of hearing was required to be given to the present applicant and decide the application preferred by the present applicant on merits. Hence, it was requested by learned advocate for the applicant to quash and set aside the impugned judgment and order dated 12.07.2019 passed by the learned Judge, Family Court, Court No.3, Ahmedabad in Criminal Misc. Application No. 3061 of 2018. From the other side, learned advocate for the respondents No.2 and 3 has strongly objected the submissions made by learned advocate for the applicant and argued that since the filing of the application under Section 127 of Cr.PC ie. on 25.09.2018, not a single day, the applicant was remained present. That, the respondents No. 2 and 3 have filed their written statement vide Ex. 10. That, applicant was not ready to record his evidence from the beginning and neither remained present as well as advocate. That, application or report was not submitted from the applicant's side to adjourn the matter as he was not requested to proceed with the matter. That, learned Family Court has rightly dismissed the application preferred by the applicant. That, no interference of this court is called for and hence, it was requested to dismiss the present revision application.

Learned APP has requested to pass necessary order as the dispute is pertaining to private parties.

Having considered the facts of the case and submissions made by learned advocates for the respective parties, it appears that Criminal Misc. Application No. 3061 of 2018 was preferred by the present applicant under Section 127 of Cr.PC with a request to reduce the amount of maintenance granted to the respondent no.3 at Rs. 20,000/- by the Family Court. As per the submissions made in his application for filing application under Section 127 of Cr.PC, after passing the order of granting maintenance to the daughter , as per the agreement executed between the applicant and respondent no.1, cases pending between them were not withdrawn by the respondent no.2. As the applicant, as per his statement, was not obliged to comply with the order passed by the court and pay the maintenance amount to his daughter, and therefore, he has preferred an application to reduce the amount of maintenance on account of change of circumstances. It appears from the order passed below Ex. 1 by the learned Family Court that after filing of the application, applicant remained absent before the court as well as advocate constant. Written statement was filed by t