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Hari Singh Isar Singh Jat Vs. Mst. Dhanno Hari Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1962CriLJ581
AppellantHari Singh Isar Singh Jat
RespondentMst. Dhanno Hari Singh
Cases ReferredA. S. Sovindan v. Mrs. Jayammal
Excerpt:
.....attention of the learned counsel was drawn to the proviso to sub-section (6) of section 488 of the criminal procedure code, which lays down that if the magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglects to attend the court, the magistrate has the power to hear and determine the case ex parte, the learned counsel argued that there was no sufficient material on the basis of which the magistrate could come to such a conclusion and the reports of the police department were not correct. if the magistrate is satisfied that he is willfully avoiding service or willfully neglects to attend the court, the magistrate may proceed to hear and determine the case ex parte. any order so made may be set aside for good cause shown, on application made within..........with a report of the post office that hari singh had refused to accept the registered letter. the learned magistrate again directed service by post, but the letter was again refused by hari singh. in the meantime, the magistrate made a further order that warrants for the arrest of hari singh be issued. the warrants were issued more than once, but neither they were executed nor returned to the court and thereupon, acting upon the report of the postal authorities regarding the refusal of hari singh to accept service by post, the learned magistrate proceeded with the application under section 488 of the criminal procedure code in accordance with the procedure laid down in sub-section (6) of that provision of law. after recording the evidence adduced by the wife and on a consideration of.....
Judgment:

Gurdev Singh, J.

1. This is a petition Under Section 439 of the Criminal Procedure Code by Hari Singh against an ex parte order passed against him in proceedings Under Section 488 of the Criminal Procedure Code, granting Rs. 35/-per mensem as maintenance to his wife, Shrimati Dhanno respondent.

2. The application Under Section 488 of the Criminal Procedure Code was presented to the Magistrate by Shrimati Dhanno on 21st December, 1959. Summonses were issued to the husband for several hearings, but they could not be served. The Courts thereupon, ordered that processes be sent-to him by registered post, but they were also returned unserved with a report of the post office that Hari Singh had refused to accept the registered letter. The learned Magistrate again directed service by post, but the letter was again refused by Hari Singh. In the meantime, the Magistrate made a further order that warrants for the arrest of Hari Singh be issued. The warrants were issued more than once, but neither they were executed nor returned to the Court and thereupon, acting upon the report of the postal authorities regarding the refusal of Hari Singh to accept service by post, the learned Magistrate proceeded with the application Under Section 488 of the Criminal Procedure Code in accordance with the procedure laid down in Sub-section (6) of that provision of law. After recording the evidence adduced by the wife and on a consideration of the material before him, on 27th June, 1960, the learned Magistrate granted the application of Shrimati Dhanno and awarded her Rs. 35/-, per mensem as maintenance against her husband, Hari Singh, from the date of the application.

3. Shrimati Dhanno subsequently applied for the execution of this order, and on warrants having been issued by the Court, the cotton crop of the husband (Hari Singh, the present petitioner,) was attached on 25th October, 1960.

4. Hari Singh could no longer ignore the process or the Court being in the peril of losing his crop and, accordingly, on 7th November, 1960, he made an application to the Magistrate under Sub-section (6) of Section 488 of the Criminal Procedure Code, praying that the ex parte order of maintenance passed against him on 27th June, 1960, be set aside on the sole ground that his service in the original proceedings had not been effected. The learned Magistrate rejected this application on 23rd November, 1960. Against this order, Hari Singh went up in revision to the Court of Session, which was rejected by Shri Chetan Das, Additional Sessions Judge, Ferozepur, on 17th February, 1961, primarily on the ground that the application for setting aside the ex parte order, which the petitioner Hari Singh had made before the Magistrate, was beyond the period of three months prescribed under Sub-section (6) of Section 488 of the Criminal Procedure Code. He further observed that it was not a fit case for interference since substantial justice had been done.

5. Hari Singh thereupon came to this Court and presented the present revision petition on 14th April 1961, assailing only the original order passed by the Magistrate on 27th June, 1960. There is no petition before this Court challenging the correctness of the order passed by the Magistrate on the petitioner's application under Sub-section (6) of Section 488 of the Criminal Procedure Code refusing to set aside the ex parte order or against the order of the Additional Sessions Judge, dated 17th February, 1961, refusing to make a recommendation to this Court for setting aside the ex parte order.

6. Shri Gandhi has contended that the ex parte order passed by the Magistrate on 27th June, 1960, was no order in the eye of law as the Magistrate had no jurisdiction to pass that order in the absence of the respondent and without proper service of summons on him. He points out that this provision of law enjoins upon the Magistrate hearing an: application Under Section 488 of the Criminal Procedure Code record all evidence . in the presence of the husband or the father, as the case may be, and argues that in the presence of this mandatary provision the learned Magistrate had no jurisdiction to pass an ex parte order. When the attention of the learned Counsel was drawn to the proviso to Sub-section (6) of Section 488 of the Criminal Procedure Code, which lays down that if the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate has the power to hear and determine the case ex parte, the learned Counsel argued that there was no sufficient material on the basis of which the Magistrate could come to such a conclusion and the reports of the Police department were not correct.

7. Mr. Gandhi has also attempted to assail the original order of the Magistrate granting maintenance to the wite ex parte on some of the grounds which are' not even contained in the application of Hari Singh presented to the Magistrate for setting aside the ex parte order, and has contended that the ex parte order cannot be sustained on any valid ground. It is, however, not necessary to go into the merits of that order, because, as observed by the learned Additional Sessions Judge, the merits coqld be gone into only if the application made by Hari Singh for setting aside the ex parte order under Sub-section (6) of Section 488 of the Criminal Procedure Code was within time. In the present case, the ex parte order was passed on 27th June. 1960, and the application for setting it aside was made as late as 7th November, 1960, i.e., nearly four and a half months from the date of the order. Sub-section (6) of Section 488 of the Criminal Procedure Code prescribes a period of three months for such an application, and there is no power in the Court Under Section 488 of the Criminal Procedure Code or any other provision of the Criminal Procedure Code to extend this time.

8. Shri Y. P. Gandhi then contended that the period of thee months prescribed under Sub-section (6) of Section 488 of the Criminal Procedure Code has to be reckoned not from the date of the order which is sought to be set aside but from the date on which the petitioner, who is aggrieved by this order, comes to know of it. This argument is untenable. The relevant provision, which is contained in the proviso to Sub-section (6) of Section 488 of the Criminal Procedure Code, runs as follows:.If the Magistrate is satisfied that he is willfully avoiding service or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date 'thereof.

9. The word 'thereof', which has been underlined ('ere in' above, leaves no manner of doubt that the period of three months has to be reckoned from the date of the ex parte order which is sought to be set aside and not from any other date. This is irrespective of the date on which the petitioner obtains the knowledge of the order, If the Legislature intended that the period of three months for making an application for setting aside an ex parte order should be reckoned from the date of knowledge, it could not have failed to state so. On a reference to the various provisions of the Indian Limitation Act, we find chat wherever the legislature considered that the date of knowledge should be the terminus a quo it has specifically said so. if the argument of the learned Counsel is accepted, it would amount to incorporating in the relevant provision the words 'or from the date on which he comes to know of this order.' Where the language is clear and unambiguous, it has to be given effect to irrespective of the hardship it may entail on the parties concerned. This is the view which has also been taken by the Madras High Court in A. S. Sovindan v. Mrs. Jayammal : AIR1950Mad153 , which has been cited by the respondent's counsel.

10. In the instant case, the application for setting aside the ex parte order was made by the petitioner beyond the period of three months from the date of the order and was, therefore, rejected by the learned Magistrate to whom it lay. This order was maintained by the learned Additional Sessions Judge, and there is no revision petition against any of those orders before this Court. Even if this petition for revision, which is specifically stated to be against the ex parte order dated 27th June, 1960, is treated as a petition for revision of the subsequent orders passed by the Magistrate and the learned Additional Sessions Judge refusing to set aside the ex parte order, I would have to hesitation in rejecting it as the application for setting aside the ex parte order was barred by time. Shri Gandhi has urged that when the records are before this Court, the Court can suo motu take notice of the illegal ex parte order passed by the Magistrate and set it aside. He, however, forgets that the revisional powers Under Section 439 of the Criminal Procedure Code cannot be exercised to set at naught a mandatory provision of law. If I accede to the request of the learned Counsel and set aside the ex parte order passed by the Magistrate Under Section 488 of the Criminal Procedure Code, I would be acting in violation of the provisions of Sub-section (6) of Section 48S which not only lay down that an application for setting aside such an order has to be made within three months from the date of the order, but also that such an application lies to the Magistrate who had passed the ex parte order and not to any superior Court.

11. Apart from this, the revisional jurisdiction had to be exercised to promote the ends of justice and in the present case, agree with the learned Additional Sessions Judge that -substantial justice has been done, and there is no justification for interfering with the order by which the learned Magistrate fixed the maintenance of the respondent, who is an old and infirm lady, at Rs. 35/- per menses. This amount Is hardly sufficient in these days of rising cost of living to keep one's body and soul together.

12. For all these reasons, I see no force in this petition and dismiss the same.


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