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Jewan Lal Vs. Raj Rani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 74 of 1973
Judge
Reported in9(1973)DLT371
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488 and 488(6)
AppellantJewan Lal
RespondentRaj Rani
Advocates: Nand Kishore and; A.R. Bhatia, Advs
Cases ReferredAysha Begum v. Mohamed Ghouse Qadri Qadeer.
Excerpt:
.....judge determined maintenance - petitioner filed application under section 488 (6) for vacating ex-parte order - order of trial judge lacked discussion of evidence - suffered from arbitrariness - as per section 488 (6) order can be set aside within period of three months from date on which person affected by order acquired knowledge - application under section 488 (6) made within time - held, ex-parte order liable to be set aside. - - section 488(6) of the code, is :section 488(6). all evidence under this chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases provided that if the magistrate is..........an application dated the 30th of november, 1970 against the petitioner under section 488 of the code that application came up before the trial court on the 3rd of december, 1970, when it was directed that notice be issued to the respondent for the 4th of january, 1971. subsequently it was noticed on the 12th of february, 1971 by the trial court that registered acknowledgment due notice had been refused. it was, however, ordered that fresh process be issued for the 17th of march, 1971. in the order passed on the 10th of june, 1971. the trial court again noticed that the registered acknowledgment due notice issued to the respondent had been refused. exparte proceedings were taken. some evidence, including the statement of the mother of the present respondent was recorded and then by the.....
Judgment:

P.S. Safeer, J.

(1) This petition has come up before me in consequence of the order pasted by ShriR.K. Sinha, Addl. Sessions Judge, Delhi or the 27.th of Februiry, 1973, in exercise of the jurisdiction provided by section 438 of the Criminal Procedure Code, hereafter called 'the Code'.

(2) The petitioner before me is the husband. The respondent Smt. Raj Rani had filed an application dated the 30th of November, 1970 against the petitioner under section 488 of the Code That application came up before the trial court on the 3rd of December, 1970, when it was directed that notice be issued to the respondent for the 4th of January, 1971. Subsequently it was noticed on the 12th of February, 1971 by the trial court that registered acknowledgment due notice had been refused. It was, however, ordered that fresh process be issued for the 17th of March, 1971. In the order passed on the 10th of June, 1971. the trial court again noticed that the registered acknowledgment due notice issued to the respondent had been refused. Exparte proceedings were taken. Some evidence, including the statement of the mother of the present respondent was recorded and then by the order made on the 27th of September, 1971 the trial court deternined that the husband should pay Rs. 200.00 per mensem towards the maintenance w. e. f. the dale of the application, which was the 3rd of December, 1970.

(3) A perusal of the record discloses that an application for execution was preferred which bears the date 25th November, 1971. Having dealt with the application on various dales, on the 20th of September, 1972 the trial court direded that a warrant of attachment be issued against the present petitioner.

(4) I he petitioner filed an application, dated the 23rd of October, 1972under section488(6)of the Code, staling in paragraph 2 thereof that on the 15th of October, 1972 a man along with the orders of the Court had reached him and an attempt was made to attach his property. In paragraph 5 the petitioner staled that after acquiring the knowledge on the I5th of October, 1972 that an exparte order had been passed against him under section 488 of the Code, he was moving the court for vacating the same. In paragraph 7 of the application the petitioner stated that the Stationg Hous Officer Karoli District Sawai Madhopur, Rajasthan had taken from him Rs. 2300.00in execution of the warrant isssued by the court.

(5) I have perused the order dated the 27th of September, 1971 which was passed exparte de ermining that R.S. 200.00 should be paid per month towards maintenance by the petitioner to the present respondent. It lacks the discussion of evidence. A scrutiny of the order shows that it suffers from arbitrariness. The court below should have observed high caution inasmuch as the petitioner was unrepresented before it and should have discussed evidence in detail in order to justify that the order was being competently passed in exercise of the jurisdiction furnished by section 488 of the Code. That apart I am not impressed that the proceedings could have held exparte against the petitioner A perusal of the orders shows that ordinary process was also directed to be issued for effecting service on the petitioner. Registered acknowledgment due notices were also issued. Attempt was made to serve him through the District Judge. Sawai Madhopur. There is no report emanating from the office of he District Judge, Sawai Madhopur to the effect that the present petitioner had refused to receive the ordinary process. Section 488(6) of the Code, is : - 'Section 488(6). All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases Provided that 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.' The proviso uses the words '(he Magistrate may proceed to bear and determine the case ex parte'. The order contemplated would be the final order by which it is determined ex-parte as to what maintenance is to bepaid by the husband to the wife. That is clear from the following words used towards the end at the proviso ;- 'Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.'

(6) The application which may be made would be against the final ex parte order determining as to what amount is to be paid towards the maintenance.

(7) The statute does use the words which indicate that the application is to be made within three months of the date of the order. While dealing with the scope of the proviso contained in section 488(6) of the Code in Balbir Singh v. Smt. Prem Wati, reliance was placed on Raja Harish Chandra Roj Stngh v. The Deputy Land Acquisition Officer and Zohra Begum alias Aysha Begum v. Mohamed Ghouse Qadri Qadeer. I am in respectful agreement with the view that the period, of limitation prescribed by the proviso, will run from the date on which the person affected by the order, acquires the knowledge thereof.

(8) According to the averments contained in the application made by the petitioner, he became aware of the the parte order only on the 15th o( October, 1972 His application preferred under section 488(6) of the Code bears the date 23rd October, 1972 and was made within time. Accepting the recommendation the exparte order dated the of September, 1971 is hereby set aside. The parties are dircted to appear before the trial court on the 19th of May, 1973. The trial court will record fresh evidence which the respondent may produce and will deal with the application preferred under section 488 of the Code in accordarce with law.

(9) The petition is disposed of.


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