MOHD. KAMIL AND 3 OTHERSversusSTATE OF U.P. AND 2 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

               APPLICATION U/S 482 No. - 38360 of 2017

Mohd. Kamil And 3 Others
                                                              .....Applicant(s)
                                   Versus
State Of U.P. And 2 Others
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)      : Anil Kumar Ray, Suresh Kumar Gupta,
                                Syed Azeem Uddin
Counsel for Opposite Party(s) : Arvind Kumar Verma, G.A.

Court No. - 83

            HON'BLE SUBHASH CHANDRA SHARMA, J.



1. Heard Sri Syed Ali, learned counsel for the applicants, learned A.G.A. for
the State and perused the record.

2. This application under Section 482 Cr. P.C. has been filed with the prayer
to quash the impugned order dated 10.10.2017 passed by learned Additional
Session Judge, Court No.7, Kanpur Nagar in Criminal Appeal No. 25 of
2017 arising out the order dated 17.01.2017 passed by learned Civil Judge
(Senior Division) Fast Tract Court, Kanpur Nagar in Case No. 624 of 2016
under Section 12 of Protection of Women from Domestic Violence Act,
2005 (Smt. Gulnaj Bano Versus Mohd. Kamil and others).

3. It is argued by the learned counsel for the applicants that in this case the
opposite party no.3-Smt. Gulnaj Bano is wife of late Rehan, who is brother
of the applicant nos. 1 and 2. He further argued that there was two property,
one was House No. 101/207 and other was House No. 101/221. The opposite
party no.3 was living with her husband in the House No. 101/207, which was
owned by late Rehan. After the death of Rehan, on 18.09.2015 the opposite
party no.3 sold out the House No. 101/207 and filed the Complaint No. 624
of 2016 before the Court of learned Civil Judge (Senior Division) Fast Track
Court, Kanpur Nagar, under Section Section 12 of Protection of Women
from Domestic Violence Act, 2005, which was dismissed by order dated
17.01.2017. This order was passed ex-parte against which the opposite party
no.3 filed an Appeal No. 25 of 2017 in the Court of Session, which was also
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decided ex-parte and allowed the appeal partly vide order dated 10.10.2017
by which the opposite party no.3 was allowed to live in the House No.
101/22. The House No. 101/221 is located at Kolonelganj, District Kanpur
Nagar and the applicants were directed to provide the place for her living.
Against which present application has been filed. He also submitted that no
opportunity of hearing was given to them by the learned appellate Court, but
the order in question was passed, therefore, request to set aside the order
passed by the learned appellate Court on 10.10.2017.

4. Learned counsel for the opposite party no.3 as well as learned A.G.A.
opposed the prayer as aforesaid and contended that sufficient opportunity of
hearing was given to the applicants by the learned appellate Court, but they
did not appear before the Court that was the reason, the appeal was decided
ex-parte. Learned appellate Court has considered all the relevant material
available on record then passed the order in question directing the applicants
to let her to live in the House No. 101/221 in which she was living with her
husband before his death. The House No. 101/207 was purchased and owned
by her husband that was the reason it was sold by her for managing the
amount in relation to treatment of her husband. There is no illegality in the
order passed by the learned appellate Court, but this application being
devoid of merit is liable to be dismissed.

5. On considering the submission made by learned counsel for both the
parties, perusal of record, order passed by the learned Magistrate and learned
appellate Court, it appears that learned Magistrate dismissed the complaint
ex-parte and then present appeal was filed by the wife before the Court of
Session, which was heard and decided ex-parte. Opportunity of hearing
could not be available to the applicants. The fact as to whether the opposite
party no.3 was living in the House No. 101/221 or House No. 101/207,
cannot be ascertained before this Court in this proceeding, it can only be
done before the learned trial court on the basis of the evidence led by both
the parties. In this way, it is just and proper to direct the parties to make
approach before the learned trial court and adduce their evidence and then
case be heard and decided on merit by the learned trial court.

6. Accordingly, order dated 17.01.2017 passed by learned Civil Judge
(Senior Division) Fast Tract Court, Kanpur Nagar in Case No. 624 of 2016
under Section 12 of Protection of Women from Domestic Violence Act,
2005 and order dated 10.10.2017 passed by learned Additional Session
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                                    Judge, Court No.7, Kanpur Nagar in Criminal Appeal No. 25 of 2017 are
                                    hereby set aside and the matter is remanded back to the learned trial court to
                                    decide the case afresh after giving an opportunity of hearing to both the
                                    parties within the stipulated period of time as provided under the Act.


                                    March 19, 2026
                                    T.S.
                                                                                 (Subhash Chandra Sharma,J.)




Digitally signed by :-
TRIBHUWAN SINGH
High Court of Judicature at Allahabad