MANU/OR/0221/2016

IN THE HIGH COURT OF ORISSA AT CUTTACK

Criminal Misc. Case No. 2633 of 2015
Decided On: 06.04.2016
Appellants: Shridhar Sahoo and Ors.
Vs.
Respondent: State of Odisha and Ors.
Hon'ble Judges/Coram:
S.K. Mishra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Niranjan Panda
JUDGMENT
S.K. Mishra, J.
1 . In this application under Section 482 of the Code of Criminal Procedure, 1973,
hereinafter referred to as the 'Code' for brevity, the present petitioners being the
petitioners in Crl. Misc. Case No. 85 of 2015 of the court of learned S.D.J.M.(S),
Cuttack, challenges the order passed by the said Court on 23.05.2015 rejecting the
prayer of the petitioners to set aside the ex parte order passed on 26.02.2013 in Crl.
Misc. Case No. 393 of 2012, which has been filed by the sole opposite party
(aggrieved person) under Section 12 of the Prevention of Women from Domestic
Violence Act, 2005, hereinafter referred to as the 'Act' for brevity.
2 . The facts are not disputed at this stage. Originally, the present opposite party-
Jayanti Swain has preferred an application under Section 12 of the Act against her
husband, father-in-law, step-mother-in-law and step-brother-in-law, who are present
petitioners in this case. Her application was registered as Crl. Misc. Case No. 393 of
2012. In that case, in pursuance of notice issued to the opposite parties, the present
petitioners appeared on 01.11.2012. Subsequently, in spite of repeated adjournments
at their instance, no show cause was filed. Finally on 06.02.2013, the opposite parties
remained absent and no steps were taken on their behalf. Hence, the learned S.D.J.M.
(S), Cuttack proceeded with the case ex parte and on 26.02.2013 final order was
passed ex parte against the present petitioners, who are the opposite parties in that
case and monthly maintenance of Rs. 5,000/- was awarded in favour of the aggrieved
person, who happens to be the opposite party in this case.
3. The present petitioners preferred appeal against that order to the learned Sessions
Judge, Cuttack in Criminal Appeal No. 59 of 2013. Learned Sessions Judge, Cuttack
allowed the appeal in part and reduced the monthly maintenance awarded from Rs.
5,000/- to Rs. 4,000/-, but as far as the contentions of the petitioners to set aside the
ex parte order is concerned, learned Sessions Judge held as follows:
"On going through the impugned order I find that the in spite of taking several
adjournments, the respondent did not file show cause before the trial court
and remained absent from the Court, for which the trial court had no
alternative, but to proceed with ex-parte hearing. The stand of the appellants
that, they were not informed about the proceeding in the trial court by their
counsel cannot be accepted as the appellant No. 1 himself is an Advocate. So
the ex-parte order cannot be set aside."

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 4. Thereafter, the petitioner Prakash Sahoo and others have filed an application under
Section 482 of the Cr.P.C., which was registered as Crl. Misc. Case No. 450 of 2015,
wherein they have assailed the order passed by the learned S.D.J.M., (S), Cuttack
without mentioning the fact that the same has been confirmed by the learned Sessions
Judge, Cuttack in an appeal as referred above. However, while the matter came before
this Court, the petitioners, in course of hearing, prays that the matter may be allowed
to be withdrawn with a liberty to move the learned Magistrate for recalling/setting
aside the ex parte order dated 08.01.2013 and the impugned order dated 26.02.2013.
5. Thereafter, the present petitioners filed Crl. Misc. Case No. 85 of 2015 in the court
of the learned S.D.J.M.(S), Cuttack purportedly under Order 9, Rule 13 of the Code of
Civil Procedure, 1906, hereinafter referred to as the 'Code' for brevity, to set aside the
ex parte order passed by that court on 26.02.2013. However, it is borne out from the
records that after initiation of execution Crl. Misc. Case No. 393 of 2012 of the court of
learned S.D.J.M. (S), Cuttack, the opposite party appeared in that case and also
subsequently they have paid certain amount in part. While such execution petition was
pending, they preferred Crl. Misc. Case No. 244 of 2014 under Section 25 of the Act
for revoking the order dated 26.02.2013 passed by the learned S.D.J.M.(S), Cuttack.
Learned Magistrate in a common order was pleased to dismiss the Crl. Misc. Case No.
292 of 2013 by order dated 11.03.2015. Such order was passed on merit.
6. Thereafter, suppressing the material facts, the petitioner No. 1-Prakash Sahoo, who
is the husband of the aggrieved person, filed an application to set aside the order
dated 26.02.2013 under Order 9, Rule 13 of the Code along with a petition under
Section 5 of the Limitation Act, 1972 for condonation of delay. It is apparent from the
records that though as per the cause title, Prakash Sahoo and others have filed the
petition, names of the other petitioners were not there. Emphasis was given by the
petitioners before the learned S.D.J.M. that the High Court of Orissa in Crl. Misc. Case
No. 450 of 2015 has permitted them to file an application for setting aside the order.
Hence, the petition should be allowed. It is apparent from the records that in the
earlier application under Section 482 of the Cr.P.C. in CRLMC No. 450 of 2015, this
Court has observed as follows:
"During the course of hearing, learned counsel for the petitioners prays for
withdrawal of the applications with liberty to move the learned Magistrate for
recalling/setting aside the ex parte order dated 08.01.2013 and the impugned
order dated 26.02.2013."
Learned S.D.J.M. has accepted the same and has granted liberty to file a petition to
recall the order passed ex parte by setting aside abatement. The learned Magistrate
has correctly held that there is no direction regarding the manner of disposal and the
outcome of the same. Hence, he came to the conclusion that the petition for recalling
of the aforesaid order should be disposed of on its own merit. On the merits of the
claim of the petitioners, the learned S.D.J.M. (Sadar), Cuttack held that all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offence under Section
31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Thus,
he has further held that no enabling provision under the Act empowers this Court to
dispose of an application as per the procedure laid down by the Code. He has very
clearly held that as far as alteration, modification or revocation of order made under
this Act, Section 25 of the Act shall be attracted.
7 . However, coming to the factual aspect and merits of the case, the learned
Magistrate has held that since the petitioners have already preferred a petition under
section 25 of the Act for revocation of the order dated 26.02.2013 vide order dated
11.03.2015, the learned Magistrate has already rejected the same on merit, the filing

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 of the petition by the petitioners is nothing but a procedural gimmick played by the
petitioners to avoid execution of the order.
8. Moreover, the learned Magistrate has taken into consideration the reported case of
S.S. Rathore v. State of Madhya Pradesh; MANU/SC/0002/1990 : AIR 1990 (SC) 10;
wherein the Supreme Court has held that once the lower court order is modified in
appeal, such order in view of "doctrine of merger", merged with the appellate court's
order and as such lost its existence. Accordingly, the learned Magistrate has come to
the conclusion that the order passed by the learned Magistrate has been merged with
the order passed by the learned Sessions Judge in the criminal appeal and the order
passed by the learned Sessions Judge, Cuttack on 26.02.2013 has lost its existence in
isolation. As such, the learned S.D.J.M. has become functus officio even to revoke that
order.
9. Lastly, the learned S.D.J.M.(Sadar), Cuttack has held that the petition under Section
5 of the Limitation Act filed by the petitioners is completely silent about the reasons
behind such a long delay. However, to patch up the lacuna, subsequently the
petitioners filed another petition to condone the delay by taking plea of bronchitis and
fever from 24.03.2013 to 15.04.2013, but no documents in support of such claim have
been advanced by the petitioners. Hence, he rejected the application for condonation
of delay and setting aside the order passed against them ex parte by the learned
S.D.J.M., which has been modified by the learned Sessions Judge in appeal.
10. In course of hearing of the Crl. Misc. Case, learned counsel for the petitioners
submitted that the Order 9, Rule 13 of the C.P.C. is applicable to the proceeding under
the Act especially in a proceeding under Section 12 of the Act and the learned
Magistrate should have held that the petition is maintainable. Secondly, it is further
argued that a petition even if under Order 9 Rule 13 of the Code is not maintainable,
the petitioner can file an application under Section 25 of the Act and the order passed
therein should be in the line of the judgment pronounced on cases involving under
Order 9, Rule 13 of the C.P.C.
11. Learned counsel for the opposite parties, on the other hand, vehemently opposed
to the contentions raised by the learned counsel for the petitioners and further argued
that on the face of an appeal to the learned Sessions Judge, later another application
under Section 25 of the Act filed by the petitioner and that on dismissal thereof, a
third petition after filing of an application before this Court under Section 482 of the
Cr.P.C. should be construed liberally to grant relief to the aggrieved person, otherwise
grave injustice would be perpetuated against the aggrieved person, who is opposite
party No. 2 in this case. It is further contended that though no stay order has been
passed in this case, the petitioners are not paying any amount awarded and have
indulged in dilatory tactics.
1 2 . Coming to the first contention itself raised by the learned counsel for the
petitioners, this Court takes note of the statements of objects and reasons of the
Protection of Women from Domestic Violence Act, 2005. Clause 3 provides that the Act
has been proposed to be enacted keeping in view the rights guaranteed under Articles
14, 15 and 16 of the Constitution of India to provide for remedy under the civil law
which is enacted to protect the women from being the victims of the domestic violence
and to prevent the occurrence of domestic violence in the Society.
13. Section 25(2) of the Act itself enjoins that on receipt of the application from the
aggrieved person or the respondent, if the Magistrate is satisfied that there is a change
in the circumstances requiring alteration, modification or revocation of any order made
under this Act, he may, for the reasons to be recorded in writing, pass such order, as

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 he may deem appropriate. Taking note of this provision, a Single Judge of the
Uttarakhand High Court in the case of Nirmal Jeet Kaur v. State of Uttarakhand and
others, MANU/UC/0715/2012 : 2013(1) Crimes 352 (Uttar.) has held as follows:
"7. The question, before Court, is that whether in the light of expression "its
own procedure for proposal of an application", can the Magistrate recall its
order passed under Section 23 or not. Certainly said expression does not give
the Magistrate power to pass arbitrary orders or to pass such an order which
is against the known basic principles of judicial procedure. In the opinion of
this Court what aforesaid expression authorities the Magistrate is that he can
pass such an order which are in consonance of the basic principles of judicial
procedure. It is pertinent to mention here that proceeding based on an
application under Section 12, the Protection of Women from Domestic
Violence Act, 2005 are not the proceeding of trial of an offence. Rather such
proceedings are quasi civil in nature, like the one under Section 125 of the
Cr.P.C. If we look in the Code of Civil Procedure, 1908, we find that there is
provision under Rule 7 of Order IX of the Code which empowers of the Court
to set aside the order directing to proceed ex parte. Under Rule 13 of Order IX
of the Code trial courts have powers to set aside the ex parte decree on
sufficient cause being shown by the defendant. Similarly under the Code of
Criminal Procedure 1973, in respect of proceedings under Section 125 of
Cr.P.C., there is proviso to Sub-section (2) of Section 126 which empowers
the Magistrate to recall an ex parte order. As such setting aside of ex parte
order by the Magistrate under the Protection of Women from Domestic
Violence Act, 2005 cannot be said to be arbitrary or against the basic
principles of judicial procedure, particularly when Sub-section (2) of Section
28 of the Act, provides that nothing in Sub-section (1) shall prevent the Court
from laying down its own procedure for disposal of an application under
Section 12 or Sub-section (2) of Section 23."
14. Thus, following the aforesaid ratio decided by the Uttarakhand High Court and
harmonious construction of Sections 25 and 28 of the Act, this Court is of the opinion
that an application for setting aside the order passed in ex parte against the
respondents in favour of the aggrieved persons is maintainable but the same is not a
petition akin to the provision under Rule 9, Order 13 of the Code. Rather, it is a
procedure which has to be devised by the learned Magistrate himself. A natural
corollary to the said interpretation is that any application under Sections 12, 18, 19,
20, 21, 22 and 23 of the Act, which has been dismissed for default against the
Respondents can also be restored by the learned Magistrate on filing of an application
under Section 25 read with 28 of the Act. So this question is answered accordingly.
15. As far as the factual aspect of the case is concerned, though no limitation has
been prescribed under Section 25 of the Act, the respondents, in order to set aside the
ex parte order, must show the change in circumstance to recall the order passed ex
parte. In its scope of ambit, the expression "change in circumstance" may also include
any fact brought before the Court that on the date the case was taken up for hearing
by the learned Magistrate ex parte, the respondent were prevented by sufficient cause,
which is beyond their control, the Magistrate may in his discretion recall the order.
16. Keeping in view this aspect of the case, the Court is of the opinion that the order
passed by the learned Magistrate is legal and does not require to be interfered with
because of the following reasons:
"(1) That earlier application under Section 25 of the Act has already been
dismissed by the learned Magistrate and that order has not been challenged by

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 the present petitioners before any higher court. Thus, that order has attained
finality.
(2) Once an order has been modified by the appellate court, the trial court
order merges with the order of the appellate court.
(3) Even after disposal of the appeal by the learned Sessions Judge, the
petitioners have filed an application under Section 482 of the Cr.P.C. before
this Court in CRLMC No. 450 of 2015, which was dismissed as withdrawn. In
that case, all other aspects of the case of filing an application to recall the
order filed in appeal by the petitioner was suppressed.
(4) From the material pleadings and the material placed before this Court, this
Court is prima facie not satisfied that there exists any change in circumstance,
which encompasses a fact which came to the notice of the Court after passing
of the order, to exercise power under Section 25 of the Act to set aside the ex
parte order passed on 26.02.2013.
(5) Moreover, there was an inordinate delay in filing Crl. Misc. Case No. 85 of
2015 before the learned S.D.J.M. (S), Cuttack without explaining the reasons
for the delay."
Hence, this Court is of the opinion that there is no merit in the claim of the petitioners
and hence this Court is not inclined to interfere with the Order dated 26.02.2013
passed by the learned S.D.J.M.(S), Cuttack in Crl. Misc. Case No. 393 of 2012.
Accordingly, the Crl. Misc. Case is dismissed.
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