CRP. No. 3603 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.10. 2023

CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

CRP No. 3603 of 2023

& CMP No. 22542 of 2023

1.Ashish Jain

2.Usha Jain

3.Parasmal Jain

...Petitioners

Vs.

Nikita Jain

....Respondent

PRAYER : This Civil Revision Petition is filed under Artcile 227 of

Constitution of India, to set aside the order dated 23.08.2023 of the VIII

Metropolitan Magistrate, George Town, Chennai made in CRL. MP. No.

5367 of 2023 in DVC No. 27 of 2021 by allowing the above Civil Revision

Petition.

For Petitioners : Mr.Sandeep Shah

For Respondent : Mr.S.Kumaresan

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CRP. No. 3603 of 2023

ORDER

This petition has been filed to set aside the order dated 23.08.2023

passed by the VIII Metropolitan Magistrate, George Town, Chennai in

CRL. MP. No. 5367 of 2023 in DVC No. 27 of 2021.

2. Heard both sides.

3. The respondent herein filed DVC proceedings against her husband

before the Trial Court and the Trial was begun but the husband was not

cooperate for the proceedings. Before DVC the husband filed a petition to

set aside the exparte order wherein the petitioner set exparte in that

application the Trial Court allowed the application with three conditions

one is to pay a cost of Rs.4,000/- and to cross examination of P.W.1 on

20.04.2023 subject to her appearance on such day and to file affidavit of

asset and liabilities of second and third respondent on the same day. In

respect of payment of cost husband complied with the same and in respect

of second condition the petitioner appeared on that day due to absence of

magistrate and incharge magistrate adjourned the matter on 21.04.2023, on

that day P.w.1/respondent was not present. Thereafter, the matter was

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CRP. No. 3603 of 2023

posted for orders. Immediately they filed the petition in Crl.M.P. No. 5367

of 2023 to set aside the exparte order but the said application was dismissed

by the Trial Court stating that revision alone is maintainable. Challenging

the said order husband preferred this petition.

4. By way of reply, the learned counsel for the respondent submitted

that the petitioner has not cross examine P.W.1 for more than nine moths

and also sufficient opportunity was given to him and also he was not

complied the order of the Court in order to drag on the proceedings. The

Trial Judge rightly closed the evidence which needs no interference.

5. On perusal of the records, it reveals that the both the husband and

wife are entitle to submit their evidence since this is a matrimonial issue

husband not cooperated for the case though the evidence was started. Now,

the petitioner had complied with the first condition of the Court on the next

day of the order and filed affidavit before the Trial Court which itself

shows that he is inclined to proceed with the trial, if opportunity is not given

to the petitioner his valuable right to defend the case will be defeated.

Hence, the order passed by the Trial Court in CRL. MP No. 5367 of 2023 in

DVC No. 27 of 2021 is set aside. Further, the Trial Court is directed to

dispose the case as early as possible preferably within a period of three

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CRP. No. 3603 of 2023

months. With regard to arrears of maintenance the revision petitioner is

directed to pay arrears of maintenance to the respondent within a period of

six weeks. With regard to third condition issued by the Court the parents

need not be complied with at present.

6. In result, this Civil Revision Petition is disposed of. No Costs.

Consequentially, the connected miscellaneous petition is closed.

09.10.2023

pbl

To

The VIII Metropolitan Magistrate, George Town, Chennai.

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CRP. No. 3603 of 2023

T.V.THAMILSELVI,J.

Pbl

CRP No. 3603 of 2023

& CMP No. 22542 of 2023

09.10.2023

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