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Zohra Begum Alias Aysha Begum Vs. Mohamed Ghouse Qadri Qadeeri and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 802 of 1963 and Case Ref. No. 83 of 1963
Judge
Reported inAIR1966AP50; 1966CriLJ129
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488(6)
AppellantZohra Begum Alias Aysha Begum
RespondentMohamed Ghouse Qadri Qadeeri and anr.
Appellant AdvocateS.M.R.H. Hashim, Adv.;K. Somakonda Reddy, Adv. for ;Public Prosecutor
Respondent AdvocateB. Bhavanarayana, Adv.
Excerpt:
criminal - limitation period for setting aside ex parte order - proviso to section 488 (6) of criminal procedure code, 1898 - additional sessions judge referred for quashing order of second city magistrate who set aside an ex parte order for maintenance after expiry of limitation period - limitation period for setting aside ex parte order commences from knowledge of order to aggrieved party - concerned party whose rights being affected due to order must get actual or constructive notice so as to enforce remedy against that order - impugned order vitiated as no notice given to petitioner before setting aside ex parte order - held, magistrate are not supposed to dismiss application to set aside ex parte order merely because it was presented three months after date of order. - .....has been made. even in land acquisition causes where a limitation has been prescribed from the date of the award there is a cafena of cases which have interpreted that order to mean the knowledge of the passing of the award, either actual or constructive. these authorities were considered in the supreme court case referred to above by gajendragadkar, j., as he then was where he observed 'where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. so the knowledge of the party affected by the award made by this collector under section 12 of the land acquisition.....
Judgment:
ORDER

Jaganmohan Reddy, J.

1. The Additional Sessions Judge, Hyderabad has made this reference for quashing the order of the II City Magistrate, who set aside an ex parte order for maintenance under Section 488(1) Cr. P. C. after the period of limitation had expired, viz., after five month) from the date of the order.

2. It may be stated that the husband-respondent when he was given the summons for service stated that he being a Government servant the same should be served through the Department and as such refused to accept the summons. The Process Server in his affidavit stated that he had read out the contentions of the summons and since he did not accept the service, made a report accordingly. The respondent was treated as ex parte and a maintenance of Rs. 75 was awarded to the revision petitioner by an order dated 10th June 1963. An application by the respondent was made on 9-10-1963 to set aside the ex parte order and without any notice to the revision petitioner the Magistrate on 10th December, 1962 passed an order setting aside the ex parte order.

3. The Addl. Sessions Judge, Hyderabad in his reference stated that under the provisions of subsection (6) of Section 488 the three months are from the date of the order, as such the Court has no power to enlarge the period of limitation and consequently the Magistrate could not set aside the ex parte order. In support of this proposition he has cited the case of A. S. Govindau v. Jayammal, : AIR1950Mad153 in which Somasundaram J., held that the period of three months does not mean three months from the date, of the knowledge of the order. Where the application is made more than three months from the dale of the order, it is liable to be dismissed, It was observed that the petitioner in that case wanted to import the word 'knowledge which is not there. But that could not be permitted because if it is the intention of the Legislature that it should be three months from the date of the order, it should have said so.

4. This, in my view, as observed by their Lordships of the Supreme Court in the case of Harish Chandra v. Deputy Land Acquisition Officer. : [1962]1SCR676 is a purely literal and a mechanical way of considering the question. The date of the order passed can only have some relation to the knowledge of the person against whom the order is made and who is ex parte. Supposing an order is made against a person who is set ex parte and who has in fact no knowledge of the order and the person in whose favour the order is made takes no steps for three months or more to execute that order, he or she could by their own act or volition preclude the person against whom the order has been made. Even in land acquisition causes where a limitation has been prescribed from the date of the award there is a cafena of cases which have interpreted that order to mean the knowledge of the passing of the award, either actual or constructive. These authorities were considered in the Supreme Court case referred to above by Gajendragadkar, J., as he then was where he observed

'Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by this Collector under Section 12 of the Land Acquisition Act, 1894, either actual or constructive is an essential requirement of fair play and natural justice. Therefore the expression 'the date of the award' used in proviso (b) to Section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually, or constructively. It will be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to Section 18 in a literal or mechanical way'.

5. Their Lordships approved of the observation of Rajamannar, C. J. in Muthiah Chettiar v. Commissioner of Income-tax, Madras, AIR 1951 Mad 201, viz.,

'If a person is given a right to reason to a remedy to get rid of an adverse order within a prescribed time, limitation should not he computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have had the knowledge of the order'.

6. After a review of decisions their Lordships observed at p. 1505 thus:

'These decisions show that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned.'

7. This reasoning applies equally in my view to the wording of the proviso to Clause (6) of Section 488 and as such I must hold that the Magistrate cannot dismiss the application to set aside the ex parte order under Section 488 merely because it was presented three months after the date of the order.

8. In this case however the Magistrate's order is vitiated by the fact that no notice has been given to the petitioner before selling aside the ex parte order. The reference is accepted, but on a different ground and the Magistrate's order setting aside the ex parte order for maintenance is quashed and the Magistrate is directed to give notice to the petitioner and after hearing the parties dispose of the matter according to law.


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