(Mousumi Roy (Ghosal) vs Ratul Roy

This application has been filed by the petitioner challenging an order dated 20th December, 2017 passed by the learned Additional District & Sessions Judge, 2nd Court, Uluberia, Howrah in Criminal Revision no. 17 of 2015 under Section 397 of the Code of Criminal Procedure, 1973.

Learned advocate appearing for the petitioner argued that the revisional application was dismissed for default and not on merit for which the same could have been restored. He further argued that the learned Court below erred in law in not restoring the revision petition preferred by the petitioner on the ground that it is settled law that a dismissal order for default is interlocutory in nature which can always be recalled by a Court of law. The learned Court below failed to consider that the petitioner/wife is totally dependent upon her retired father and she has a minor child for which such meager amount of Rs.5000/- per month is not sufficient.

Mr. Ratul Roy appearing in person opposing the revision petition prayed for dismissal of the instant application.

After hearing learned advocates for the parties and after perusing the impugned order, I find that the petitioner stayed with her daughter without being maintained by her husband and accordingly she filed an application under Section 125 of the Code of Criminal Procedure along with an application for interim maintenance. The learned Judicial Magistrate, F.C. 2nd Court, Uluberia passed an order of interim maintenance dated 7th December, 2015 directing the opposite party to pay Rs. 3,000/- to the petitioner and Rs. 2000/- for her child per month till the disposal of that case. Being aggrieved and dissatisfied with the said order, the petitioner filed a criminal revision no. 17 of 2015 before the learned Additional District & Sessions Judge, Uluberia and the learned Judge by order dated 29th June, 2016 dismissed the said criminal revision for default. Thereafter, the petitioner filed an application for recalling the order dated 29th June, 2016, which was also dismissed on 20th December, 2017.

Under the facts and circumstances of this case, in my view, the order of dismissal for default is not a final order and therefore, the order dated 20th December, 2017 is set aside

and quashed. The matter is remanded back to the learned Additional District & Sessions Judge, Uluberia for fresh hearing of the application for recalling the order dated 29th June, 2016. The learned Additional District & Sessions Judge, Uluberia is requested to dispose of the same in the light of the observation as made above, preferably within a period of twelve weeks from date.

With this direction the revisional application, being CRR 381 of 2018, is disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.