A.A. Dave, J.
1. The learned Sessions Judge, Kutch at Bhuj has made this reference recommending that the ex-parte order passed by the learned Judicial Magistrate, First class, Bhuj be set aside and that appropriate orders may be passed.
2. The facts giving rise to this reference briefly stated are as under :-The present opponent Jayaben filed an application against her husband Prabhulal claiming maintenance under Section 488 of the Criminal Procedure Code on 5-5-1970. In her application, she stated that she was married with Prabhulal about two year's back, according to Hindu rites. She alleged that her husband was impotent and in order to conceal that fact from her, he began to ill-treat her and had driven her out of the house. According to her, the monthly income of her husband was Rs. 500/-. She therefore, claimed Rs. 150/- per month as maintenance. At the relevant time, Prabhulal was residing at Katihar in Bihar. The summons was sent by registered post. The said packet was returned unserved with the postal endorsement 'refused. The learned Judicial Magistrate, First class, Bhuj thereupon passed an order in favour of Jayaben directing Prabhulal to pay Rs. 100/- per month by way of maintenance. The first instalment became due on 1st October 1970. On 7th January 1971, Prabhulal filed an application stating that the ex-parte order of maintenance passed against him was bad in law and was in violation of mandatory provisions of law. According to him, he and his wife had last lived together in Katihar in Bihar and so, Bihar court had jurisdiction to entertain the petition. He also alleged that the summons was not served on him according to law and that he had no opportunity to attend the court. He stated that he was always ready and willing to accept Jayaben and offered to keep her with him. The learned Magistrate, however, dismissed the application for setting aside the ex-parte order passed in favour of Jayaben. Prabhulal thereupon filed a revision application in the sessions court, Kutch at Bhuj and the learned Sessions Judge has made the present reference stating that the order passed by the learned Magistrate is not correct.
3. Mr. K.N. Mankad, learned Advocate for the applicant submitted that in the instant case, when the applicant stated on oath that he had not refused the summons sent to him and in fact, the summons was not tendered to him, there was no reason for the learned Magistrate to reject his application for setting aside the ex-parte order passed against him. He submitted that there was no provision in the Criminal Procedure Code under Sections 68 to 71 for serving summons by registered post. However, assuming for the sake of argument that such summons could be served by registered post, the pertinent question remained whether it was duly tendered to the applicant and refused by him. There is no conclusive presumption in this regard. Mere postal endorsement of refusal would not go to show that in fact, it was tendered to Prabhulal and was refused by him, particularly when Prabhulal stated on oath that such a summons was not tendered to him. There was no reason to doubt his word in the absence of any tangible evidence led by Jayaben. Mr. Mankad also referred to the proviso to Section 488(6) wherein it is stated that for good cause shown, an ex-parte order may be set aside within three months from the date thereof, if an application is made. In the instant case, he urged that when the husband had no knowledge about any such application being filed in court, an opportunity should be given to him to controvert the allegations made against him by his wife.
4. Mr. Y.S. Mankad, learned Advocate for the opponent, on the other hand, urged that in the instant case, the husband had driven away his wife and for the last three years, he had not given any maintenance to her. He urged that normally the postal endorsement of refusal should be accepted by the court and the mere word of the husband that such a summons was not served on him should not be enough He also urged that the application given by the husband for setting aside the ex-parte order was not given within three months from the date of the order and that it was barred by limitation and it was rightly rejected by the court.
5. It may be noted at the outset that so far as the relevant provisions for service of summons as contained in Sections 68 to 71 of the Criminal Procedure Code are concerned, they do not make any mention about the summons being served by registered post. However, cases may arise where the opponent may be permanently residing outside the local jurisdiction of the court and in such a case, the court would have no option but to send summons by registered post. But even then, unless it is established that the summons was duly served on the opponent or that he was wilfully avoiding the service of summons or refused to accept the summons, no ex-parte order could be passed against him without giving him proper opportunity. In the instant case, the opponent-husband was residing at Katihar in Bihar at the relevant time. The postal packet containing the summons no doubt was returned to the court by the postal authorities with the endorsement 'refused'. However, the husband has stated in his affidavit that no such summons was tendered to him by the postal authorities. There is nothing on record to show that in fact such a summons was tendered to him and that he deliberately refused to accept the same. I do not agree with the submissions made by Mr. Y.S. Mankad that the postal endorsement 'refused' should be sufficient to show that he must have refused to accept the same. Instances are not uncommon when such false endorsements are also made by the postal authorities at the instance of the interested parties. In the absence of any material before me, it is difficult for me to say one way or the other whether the postal packet containing the summons was in fact tendered to the husband and he refused to accept the same. In the instant case, when the husband has stated on oath that he has not received the summons, there is no reason to disbelieve him in the absence of any tangible evidence led by his wife. In my opinion, therefore, the summons was not duly served on the present applicant. If it is so, any ex-parte order passed by the learned Magistrate without giving him proper opportunity of being heard, cannot be said to be a legal order.
6. Mr. Y.S. Mankad, learned Advocate for the opponent-wife however urged that such an application should have been given by the applicant within three months for the date of the order. As this application was not given within three months thereof, it was barred by limitation. I am unable to agree with him, firstly because the order which was passed by the court without giving proper opportunity to the applicant of being heard, itself would be illegal and bad if the fact of the summons not being tendered to him is believed. That apart, when the husband has stated on oath that no such summons was tendered to him and that he came to know for the first time about the ex-parte order passed by the court within three months from the date of the application, it cannot be said that there was any delay on his part in filing such an application. Besides, no such plea was taken by his wife in her reply filed before the court and therefore, there was no, opportunity for the present applicant to show as to when he came to know about the ex-parte order passed by the court. The question of limitation therefore would not arise in such a case. I am supported in my view by the decision of this Court in the case of Laxmandas v. Smt. Lachmibai 9 G.L.R. 116 wherein it was observed:
An application to set aside the ex parte order made under Section 488 of the Criminal Procedure Code is to be taken as duly filed within 3 months from the date of the knowledge thereof, more particularly in cases of this type, where not only no valid summons was issued as required under the provisions of the Code but where the opponent was found not to have been wilfully avoiding service or neglecting to attend to court as required under Section 488 of the Code. It is, therefore, clear that the period of limitation will only begin to run from the date when the opponent came to know about the order passed against him by the Court, for setting aside any such order passed behind his back.
With respect, I am in entire agreement with the observations made therein. In the instant case, even calculating the time from the date of the ex-parte order passed by the court, the application given by him was late only by one day. If the plea of limitation had been taken by the wife in her reply, the husband could have been in a position to show clearly as to when he came to know about the order. The court, for appropriate reasons could have condoned the delay even if for the sake of argument it is assumed that the period of limitation would begin turning from the date of the original order and not from the date of the knowledge of the husband. I am unable to agree that the said application given by the husband for setting aside the ex-parte order was filed beyond limitation. I entirely agree with the learned Sessions Judge that the application being filed within three months from the date of the present application was within time. As already stated earlier, proviso to Sub-clause (6) of Section 488 of the Code of Criminal Procedure itself states that the Magistrate is satisfied that he is wilfully avoiding service or wilfully 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. In the instant case, in the application given by the husband, he has clearly stated that he was not aware of any proceeding being taken against him and he came to know for the first time within three months from the date of the application, about the ex-parte order. Under the circumstances, in my opinion, the order passed by the learned Judicial Magistrate, First class, refusing to set aside the ex-parte order of maintenance is not proper and deserves to be set aside.
7. Mr. Y.S. Mankad, learned Advocate for the opponent wife at this stage urged that before restoring the application, the present applicant should be directed to deposit proper security. In my opinion, it is difficult to consider the request made by the learned Advocate for the opponent. There is no provision in Section 488 of the Code of Criminal Procedure for directing the present applicant to deposit any money or give any security while setting aside the ex-parte order passed against him. The oral request made by Mr. Mankad, is, therefore, rejected.
8. I, therefore, accept the reference made by the learned Sessions Judge and set aside the ex-parte order of maintenance passed by the learned Judicial Magistrate, First class, Bhuj against the present applicant.
9. The learned Magistrate is directed to hear the original application for maintenance denovo and pass final orders within two months from the date of receipt of papers by the court.