Ajay Kumar v. State of U.P. and others) came up for consideration before the co
Case Details
Neutral Citation No. - 2024:AHC:119491 Court No. - 89 Case :- APPLICATION U/S 482 No. - 23828 of 2024 Applicant :- Ajay Kumar Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Arvind Kumar Dixit Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J. 1. Challenge is to the entire proceedings in relation to the order dated 10.04.2024 passed by learned Principal Judge, Family Court, District Firozabad in Criminal Misc. No. 136 of 2016 (Rajni Vs. Ajay Kumar) under Sections 125 Cr.P.C., Police Station Tundla,
Legal Reasoning
District Firozabad arising out of order dated 28.03.2016 passed in Case No. 203 of 2013 under Section 125 Cr.P.C. Police Station South, District Firozabad, whereby recovery proceedings has been initiated against the applicant.
Legal Reasoning
2. Learned counsel for the applicant submits that the opposite party no.2 filed an application under Section 125 Cr.P.C. which was allowed vide Judgement and order dated 28.03.2016 and the applicant was directed to pay Rs. 6000/- per month and Rs. 1000/- per month to the opposite party nos. 2 and 3 respectively from the date of application and Rs. 7000/- per month and Rs. 3000/- per month from the date of order. Learned counsel further argued that against the aforesaid order dated 28.03.2016, the applicant filed Criminal Misc. (482) Application No. 29381 of 2018 before this Court and the co-ordinate Bench of this Court vide order dated 24.08.2018 had referred the matter to the mediation and conciliation centre of this Court with a direction to the applicant to pay Rs. 3500/- per month. Subject to such compliance, operation of the order dated 28.03.2016 was suspended. Learned counsel for the applicant submitted that the applicant has been continuously paying Rs. 3500/- per month and has complied with the order of this Court. Learned counsel further argued that the mediation between the parties could not succeed and thereafter, the aforesaid application under Section 482 Cr.P.C. came up for consideration before this Court on 05.08.2019 which was dismissed as not maintainable. Learned counsel further argued that since the order dated 05.08.2019 was passed in the absence of the counsel, a recall application has been filed which is pending consideration inspite of the same, the Principal Judge, Famly Court vide order impugned has issued recovery warrant against the applicant. It is thus contended that the order impugned is illegal, arbitrary and is liable to be set aside by this Court. 3. Perusal of the record shows that when the aforesaid Criminal Misc. (482 Cr.P.C.) Application No. 29381 of 2018 (Ajay Kumar Vs. State of U.P. and others) came up for consideration before the co-ordinate Bench of this Court on 05.08.2019, the counsel for the opposite party no.2 had apprised the Court that against the recovery proceedings initiated pursuant to the order dated 28.03.2016 passed by Principal Judge, Family Court, Firozabad, Criminal Misc. (482) Application No. 9067 of 2017 was filed by the applicant in which, conditional order was passed on 28.03.2017 directing the applicant to deposit 50% of the total arrears of amount pursuant to the recovery proceedings to the opposite party no.2 within a period of one month and was further directed to deposit monthly maintenance amount, as awarded by the Court below by 7th of each calendar month before the concerned Court below. Subject to such compliance, arrears of remaining 50% of the amount as well as coercive action against the applicant was kept in abeyance. The applicant instead of complying with the order dated 28.03.2017, filed Criminal Misc. (482) Application No. 29381 of 2018 against the recovery warrant dated 24.07.2018 and the co-ordinate Bench taking into consideration the submissions advanced by learned counsel for the opposite party no.2, dismissed the said 482 application with an observation that the application is not maintainable, being second 482 application assailing the recovery proceedings. 4. Thus, it is borne out from record that this is the third round of litigation arising out of same cause of action. The applicant had initially challenged the recovery proceedings pursuant to the order dated 28.03.2016 by way of filing Criminal Misc (482) Application No. 9017 of 2017 but did not comply with the conditional order passed therein and in the meantime, another recovery warrant's order dated 24.07.2018 was issued which was again challenged by the applicant by way of filing Criminal Misc. (482) Application No. 29381 of 2018 in which vide order dated 24.08.2018 the matter was referred to the Mediation and Conciliation Centre of this Court and the applicant was directed to deposit Rs. 3500/- per month as maintenance to the opposite party no.2 but thereafter mediation failed. The aforesaid application was finally dismissed by the co-ordinate Bench of this Court vide order dated 05.08.2019 with an observation that second application for the same recovery is not maintainable, copy of which order is at page no. 32 of the paper book. Recall application has been filed by the counsel for the applicant which is pending consideration, as is evident from perusal of status report at page no. 33 of the paper book. The Family Court proceeded against the applicant by issuing the recovery warrant's order dated 10.04.2024, which order is under challenge in the instant application. 5. The argument of the learned counsel for the applicant that the order dated 05.08.2019 was passed in the absence of the counsel for the applicant does not come to the aid of the applicant as the same had been passed in the revised reading of the cause list. This Court also takes note of the fact that merely filing of the recall/restoration application does not restrict the Family Court from proceeding with the matter and therefore, the Family Court had rightly proceeded with the matter and passed necessary order, therefore there is no illegality or perversity in passing the order impugned. On the other hand, the applicant rather complying with the orders of the Court is taking undue advantage of the process of law and Court by challenging the one order after another, which orders are nothing but a procedural orders and therefore, such misuse of the process of law and Court cannot be permitted by this Court. 6. Accordingly, the instant application lacks merit and is dismissed. 7. The Registrar (Compliance) of this Court is directed to communicate the order passed by this Court to the concerned Family Court forthwith, so as to enable the Family Court to take necessary steps for recovery of the maintenance amount from the opposite party no.2, in accordance with law, provided there is no legal impediment. Order Date :- 25.7.2024 S.Ali