Final Order 13

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT: ROHINI COURTS: DELHI
CNR No. DLNW01-008670-2024
CA No. 202/24
1. Smt. Namrata Yadav
W/o Sh. Deepesh Yadav
D/o Sh. Rajender Singh Yadav
2. Manan Yadav
(complainant No. 2 being minor through his
natural guardian/mother)
Both presently residing at
R/o HU-79, Ground Floor
Pitam Pura, Delhi. …..Appellants
Versus
1. Sh. Deepesh Yadav
S/o Sh. Ramesh Kumar Yadav
R/o D-73, First Floor
Ashok Vihar, Phase-I, Delhi
Also at:
HU-79-80-81
Pitam Pura, Delhi
2. Sh. Ramesh Kumar Yadav
S/o late Sh. Balwant Singh
3. Smt. Kavita Yadav
W/o Sh. Ramesh Kumar Yadav
All R/o HU-79-80-81
Pitam Pura, Delhi
4. Smt. Manisha Yadav
W/o Sh. Gaurav Yadav
R/o Jwalaheri, Paschim Vihar
New Delhi …..Respondents
CA No. 202/24 Namrata Yadav & Anr. Vs. Deepesh Yadav & Ors. Page 1 of 6
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Date of institution : 12.09.2024
Arguments concluded on : 10.03.2025
Date of pronouncement : 25.03.2025
JUDGMENT
1. The present appeal has been preferred impugning
the order dated 25.07.2024 passed by the Ld trial court, whereby
the complaint filed by the complainant/appellant has been
dismissed.
2. The brief facts giving rise to the present appeal are
that Namrata Yadav (for herself and as natural guardian of the
minor) filed the complaint against Deepesh Yadav and others
under the provisions of Protection of Women from Domestic
Violence Act. During the pendency of the petition on
25.07.2024, the trial court dismissed the petition due to non
appearance of the complainant and non prosecution. Aggrieved
by the order, the present appeal has been preferred.
3. Notice of appeal was sent to the respondents. Trial
court record was requisitioned.
4. I have heard Ld counsel for the parties and perused the
record.
5. Ld counsel for the appellant submitted that the
complainant by the appellant herein was filed in the year 2018,
since then, it is pending trial before the trial court. During the
pendency, respondent No. 1 and 3 filed applications for providing
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rented accommodation to the appellants herein. It was only on
14.12.2023 that the applications moved by respondents No. 1 and
3 were dismissed and for the first time, the matter thereafter was
listed for evidence of the complainant for 17.02.2024. On
17.02.2024, the trial court was on leave and hence, the matter
was adjourned to 01.06.2024 for the purpose fixed. On
01.06.2024, the trial court ordered for presence of the
complainant and adjourned the matter for complainant evidence
to 25.07.2024. On 25.07.2024, neither the complainant nor her
counsel was present, therefore, the court dismissed the complaint
for non prosecution and non appearance. Ld counsel submitted
that the appellant herein are the aggrieved and effected parties.
The dismissal of the complaint has resulted into grave
miscarriage of justice causing undue prejudice. The proxy
counsel appeared on that date and sought time, but that was not
considered. The court acted in haste. It is prayed that the order
be set aside and one opportunity be given to the appellant herein
to continue with the proceedings under the Domestic Violence
Act.
6. Ld counsel for the respondents submitted that the case
is pending since 2018. We have reached in 2025 now. The
complainant has not taken any steps to lead evidence. Even in
the appeal, she has not mentioned as to why she has not appeared
on 25.07.2024. The proxy counsel sought time of 7 days to file
the affidavit of evidence without assigning any reason, therefore,
the trial court has rightly closed the evidence. It is prayed that
there is no merit in the appeal, the same be dismissed.
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7. After hearing the arguments and going through the
record, I found that according to the ordersheets, first date for
evidence was fixed for 17.02.2024 as also pointed out by Ld
counsel for the appellant. On 17.02.2024, Ld Magistrate was on
leave, hence, the matter was adjourned to 01.06.2024. On
01.06.2024, the court passed the following order:
01.06.2024
Present: Sh. Shivam, Ld proxy counsel for
complainant.
Respondent No. 1 with Ld counsel Sh.
Rohit Goyal.
Complainant is directed to remain present
on the next date and lead evidence failing which matter
shall be dismissed for non prosecution.
Put up for CE on 25.07.2024.
(Preeti Rajoria)
MM/Mahila Court 2
North West District/
Rohini, Delhi
01.06.2024
8. On 25.07.2024, the court passed the following order:
25.07.2024 at 12:30 pm
Present: Sh. Shivam, Ld proxy counsel for the
complainant.
Ld proxy counsel for respondent.
Sh. Rohit Goel, Ld counsel for respondent
no. 1 with respondent no. 1 through VC.
Matter is listed for CE since the last many
dates. Vide order of last date, complainant was directed
to remain present today and lead evidence despite which
neither the complainant nor his main counsel is present
today till now and Ld proxy counsel for complainant is
seeking 7 days time to file the evidence affidavit of the
complainant. The said request is denied taking into
account of conduct of the complainant. It is evident that
the complainant is not interested in pursuing the present
complaint any more. Accordingly, the present case is
dismissed in default for non appearance/non prosecution.
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File be consigned to record room after due compliance.
(Preeti Rajoria)
JMFC/Mahila Court 2
North West District/
Rohini, Delhi
25.07.2024
9. From these records, it is evident that it was the
second date for evidence. On that date, the complainant was
certainly not present. Even the affidavit of evidence was not
ready and not filed. There is no explanation in the entire appeal
filed by the appellant as to why the affidavit was not ready and
why she could not appear before the court. There is also no
explanation as to where was the main counsel. This itself raises
question mark about the conduct of the appellant, but at the same
time as that was only second opportunity and valuable right of
the complainant to pursue her complaint was closed. Hence, the
present appeal is allowed subject to payment of cost of Rs.
5,000/- to be paid to the respondents and only one opportunity is
accorded to the appellant to lead her entire evidence on
04.04.2025 before the court of Ld Judicial Magistrate. Both the
parties shall appear before the court of Ld Judicial Magistrate on
04.04.2025 at 10:00 AM and will cooperate in recording of the
evidence and cross examination.
10. It is made clear that payment of cost will be condition
precedent for recording of evidence, which shall be paid by the
appellant to the respondents before the trial court.
11. Appeal is accordingly disposed off.
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12. Trial court record, alongwith a copy of this judgment,
be sent back.
13. Appeal file be consigned to record room.
Announced in the open court
today i.e. 25th March, 2025
(Virender Kumar Bansal)
Principal District & Sessions Judge(NW)
Rohini Courts, Delhi
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