HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 482 No. - 38360 of 2017 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 Versus Counsel for Applicant(s) : Anil Kumar Ray, Suresh Kumar Gupta, Syed Azeem Uddin Counsel for Opposite Party(s) : Arvind Kumar Verma, G.A. Mohd. Kamil And 3 Others .....Applicant(s) State Of U.P. And 2 Others .....Opposite Party(s) 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 A482 No. 38360 of 2017 2 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. A482 No. 38360 of 2017 3 (Subhash Chandra Sharma,J.) Digitally signed by :- TRIBHUWAN SINGH High Court of Judicature at Allahabad