Mungeli, Chhattisgarh v. 1. 2
Case Details
1 2025:CGHC:38897 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 192 of 2023 Chhote Lal Prajapati S/o Rajbahor Prajapati Aged About 29 Years R/o Village Bodtara Kalan, Mungeli Bodtara Police Chowki Chilfi, Police Station Lormi, District : Mungeli, Chhattisgarh ... Applicant versus 1. 2. Smt. Annu Prajapati W/o Chhote Lal Prajapati Aged About 27 Years R/o Choti Koni Police Station Koni, Tehsil And District-Bilaspur, Chhattisgarh Prince Prajapati S/o Chotelal Prajapati Aged About 4 Years Through Natural Guardian (Mother) Smt. Annu Prajapati R/o Choti Koni, Police Station Koni, Tehsil And District- Bilaspur, Chhattisgarh 3. Choti Prajapati D/o Chotelal Prajapati Aged About 2 Years Through
Legal Reasoning
Natural Gurdian (Mother) Smt. Annu Prajapati R/o Choti Koni Police Station Koni, Tehsil And District- Bilaspur, Chhattisgarh ... Respondents For Applicant : Mr. Ravikar Patel, Advocate. ABHISHEK SHRIVAS Digitally signed by ABHISHEK SHRIVAS Date: 2025.08.07 11:41:28 +0530 05.08.2025 Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 1. 2. Heard Mr. Ravikar Patel, learned counsel, appearing for the applicant. The present revision has been filed by the applicant with the following prayer: “1. That this Hon’ble Court pleased to allow the instant petition and pleased to decide the grievance of the petitioner. 2 2.That, this Hon’ble Court pleased to set-aside the order dated 25.01.2023 passed by the learned Additional Principal Judge, Family Court, Bilaspur in MJC No. 278/2022 (Annexure-P/5). 3. That Family Court may kindly be direct to initiate action against the respondent under Section 340 read with section 209 of the Indian Penal Code for making false claim before the Court of Justice.” 3. Brief facts of the case are that the core issue of the instant petition is based on the sole ground that respondent No. 1, who is the wife of the petitioner, obtained an ex parte order of maintenance in her favor by playing fraud, as can be inferred from the foregoing paragraphs of the instant petition. A copy of the application under Section 125 Cr.P.c., preferred by the respondent before the family court, bilaspur (c.g.), is annexed hereto as Annexure-p/1, and a copy of the ex parte order dated 11.10.2019 along with the entire order sheet of the family court, bilaspur (c.g.), is annexed hereto as Annexure-p/2 (colly). It is apt to mention here that respondent No. 1, by employing sordid ingenuity, succeeded in obtaining the ex parte order in her favor based on a non-existent address and an incorrect name of the applicant’s father. When all these facts were brought before the Family Court in proceedings under Section 126(2) Cr.P.C. for setting aside the said order, the Family Court refused to do so, relying solely on presumptions and conjectures. A copy of the application preferred under Section 126(2) Cr.P.C. is annexed hereto as Annexure-P/3. A copy of the reply filed on behalf of respondent no. 1 is annexed hereto as Annexure-P/4. 4. Learned Family Court, Bilaspur (C.G.), failed to take proper cognizance and did not consider the letter and spirit of the statutory provisions 3 envisaged under Section 126(2) of the Cr.P.C., and declined to interfere with the earlier order passed under Section 125 Cr.P.C. 5. A copy of the impugned order dated 25.01.2023 passed in M.J.C. No. 278/2022 is annexed hereto as Annexure-P/5. For the kind perusal of this Hon’ble court, a copy of the aadhaar card of the applicant, wherein the correct name of the applicant’s father and address are mentioned, is annexed hereto as Annexure-P/6. 6. Learned counsel for the applicant submits that the core issue in the present petition revolves around the fact that respondent No. 1, who is the wife of the applicant, obtained an ex-parte order of maintenance in her favor by committing fraud, as detailed in the foregoing paragraphs of the petition. He submits that It is a settled principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner only or not at all. This legal principle was laid down by the Hon’ble Supreme Court in Municipal Corporation of Greater Mumbai v. Anil Shantaram Khoje, reported in (2016) 15 SCC 726, particularly in Paragraph 14. He further submits that the Family Court, Bilaspur, vide its order dated 27.02.2019 (refer Page No. 32 of the petition), proceeded to pass ex parte orders against the applicant. However, the Court failed to record its satisfaction that the applicant was “willfully neglecting to attend the Court,” which is a mandatory requirement before proceeding ex parte under Section 126(2) CrPC. He also submits that this serious procedural lapse alone renders the entire proceedings unsustainable and liable to be set-aside. Furthermore, the ex-parte order was passed on the basis of incorrect details — namely, a wrong name of the applicant’s father and an incorrect address. While the actual name of the applicant’s father is Rajbahor Prajapati, and his correct residential address is Village Bodtara 4 Kalan, Mungeli, Bodtara, Police Chowki Chilfi, P.S. Lormi, District Mungeli (C.G.), the Family Court proceeded with the matter by recording the father’s name as Pandit Prajapati and address as Village Mahka, P.S. Kunda, District Mungeli. He also submits that in para 17 of the impugned order, the Family Court further relied upon different names of the applicant’s father — Rajbahor, Mahraj, and Siyacharan — as recorded during the counseling proceedings before the Mahila Thana. However, the applicant was not present in those proceedings, and therefore no reliance could have legally been placed on such documents against him. The Court, without due application of mind, wrongly attributed fault to the applicant and made adverse observations which formed the foundation of the impugned order. 7. Learned counsel for the applicant further submits that learned Family Court failed to record its satisfaction that the applicant was “willfully neglecting to attend the Court,” which is a precondition to proceeding ex parte under Section 126(2) CrPC. As all evidence must be recorded in the presence of the applicant, and jurisdiction to proceed in his absence arises only upon such satisfaction, the ex-parte order is not in accordance with law. Therefore, the issue of delay in filing an application to set-aside the ex-parte order does not arise. The records of the learned Family Court do not disclose whether the mandatory procedure for service of summons under Section 70 Cr.P.C. was ever attempted or found ineffective. In the absence of proper service at the correct address and with the correct name of the applicant’s father, the very foundation of the ex-parte proceedings stands vitiated. The applicant was never actually served, and thus, the proceedings are legally unsustainable. 8. It is a settled principle of law and a cornerstone of natural justice that “failure to give reasons amounts to denial of justice.” Reasons are the 5 live link between the mind of the decision-maker and the decision rendered. In the present case, learned Family Court failed to provide cogent reasons for rejecting the applicant’s application under Section 126(2) CrPC and did not properly consider the proviso appended thereto. In Union of India & Others v. Jai Prakash Singh & Another, reported in AIR 2007 SC 1363, the Hon’ble Supreme Court emphasized that the absence of reasons renders an order unsustainable. Quoting Lord Denning and various judgments, it was reiterated that failure to give reasons not only violates natural justice but also impairs judicial review and transparency. If any person obtains an order by playing fraud, suppressing material facts, withholding vital documents, or by misstating facts such as name or address, any such order is void ab initio. Every Court has inherent powers to recall such orders which are detrimental to the other party. 9. I have heard learned counsel for the applicant and perused the judgment of the learned Family Court. 10. From perusal of the order of the learned trial Court, it transpires that the trial Court observed that:- 18.According to the applicant, Chhotelal Prajapati, his father’s name was not certain and had been mentioned differently. In such a situation, it was also possible that the name “Pandit Prajapati” as written by the non-applicant, Smt. Annu Prajapati, in her application under Section 125 Cr.P.C., was correct. It was also a matter of consideration that the addresses of the applicant and non-applicant were mentioned differently in the case. For 6 instance, according to the non-applicant, their marriage had been solemnized at Village-Koni, Bilaspur, but she mentioned the address of the non-applicant as Village-Mahka, P.S. Konda, District-Mungeli. Similarly, the applicant, Chhotelal Prajapati, mentioned his address in his application under Section 126(2) CrPC as Village-Bodtara, Outpost-Chilfi, P.S. Lormi, District-Mungeli. In such a situation, when both the name and address were not identical but different, it was not possible to serve the summons at a single address. Therefore, the non-applicant, Annu Prajapati, had the summons served through a publication in a local newspaper. 19. On 09.02.2018, in the present case, the summons was served through publication in a local newspaper dated 29.01.2019, and based on that, an ex-parte order was passed on 11.10.2019. The applicant filed an application against the order dated 11.10.2019 on 17.03.2022. However, as per Section 126(2) CrPC, an application for setting aside an ex-parte order must be filed within three months from the date of the order by showing sufÏcient and reasonable cause. In the present case, the applicant filed the application after a delay of approximately two and a half years and did not mention any reasonable cause for such delay. No separate application for condonation of delay 7 was filed either. Moreover, the applicant also did not clarify when he came to know about the order dated 11.10.2019, which had been passed on the application filed by the non-applicant. Therefore, due to the above-mentioned reasons, the application was found to be not maintainable and was rejected. Therefore, the order passed by the learned trial Court is just and proper. 11. Considering the submission advanced by the learned counsel for the applicant and perusing the impugned order and the finding recorded by the learned trial Court, I am of the view that the learned trial Court has not committed any illegality or infirmity or jurisdictional error in the impugned order warranting interference by this Court. 12. Accordingly, the criminal revision being devoid of merit is liable to be and is hereby dismissed. - Abhishek Sd/- (Ramesh Sinha) Chief Justice