K.S. Lodha, J.
1. This case has a chequered history. The non-petitioner Smt. Gurdeo Kaur had filed an application Under Section 488 Cr. PC for grant of maintenance allowance against her husband the petitioner Bhur Singh, on 6-9-65. Notices of this application were issued to the present petitioner and the date fixed was 8-10-65. However, the petitioner did not appear on that day despite service and the learned Magistrate was also on leave. The matter then came up on 25-11-65. On that day again, the petitioner did not appear and, therefore, the learned Magistrate ordered ex-parte proceedings against him. The application of Smt. Gurdeo Kaur was accepted on the basis of the evidence led by her ex-parte and on 4-7-66, the learned Magistrate directed the present petitioner Bhur Singh to pay her Rs. 50/- p.m. On 8-8-66, the petitioner applied for setting aside that ex-parte order. That application was rejected by the learned Magistrate on 26-2-67, on the ground that it was barred by time. The petitioner filed a revision and thereupon a reference was made to this Court, which was accepted and the matter was remanded to the learned Magistrate with a direction to the trial court holding that the application was within time and should be disposed of on merits after hearing both the parties. It appears that while the matter was going on after remand for the hearing of that application, inadvertently the petitioner was allowed to file his replies to the main application Under Section 488 Cr. PC and evidence of both the parties was recorded in the main application. The evidence was over on 10-7-76 and arguments were heard on 16-7-76, and the case was posted for orders on 21-7-76. On that day, the learned Magistrate was on leave and the case was adjourned to 4-7-76. It appears that while going through the record for passing the final order on 24-7-76, the learned Magisirate discovered that the proceedings in the original application Under Section 488 Cr. PC had wrongly been taken and under the direction of the High Court, he was only required to dispose of the present petitioner's application for setting aside the ex-perte order. He thereupon fixed the case for arguments on that application on 27-7-76. He beard the arguments on that day and on the same day, rejected this application holding that the grounds set forth by the petitioner were not sufficient. He also directed that the order passed by that court on 4-7-66 would hold good and that the present petitioner should pay the arrears of maintenance from 6 9-65 upto date to the non-petitioner The present petitioner thereupon filed a revision before the learned Addl. Sessions Judge No. 2, Hanumangarh, which was partly accepted on 19-3-79. The learned Addl. Sessions Judge upheld the order dismissing the petitioner's application for setting aside the ex-parte order but set aside the part of the order of the learned lower court directing the petitioner to pay the arrears. Now the petitioner has come up before this Court praying that either the order refusing to set aside the ex-parte order be set aside or in the alternative, it must be deemed to have impliedly been set aside when the leerned Magistrate proceeded with the main application Under Section 488 Cr. PC, took the reply of the petitioner, recorded evidence of the parties and even finally heard the matter.
2. I have heard the learned counsel for the petitioner. The non-petitioner has not cared to appear.
3. So far as the alternative argument of the learned counsel goes, it may at once be stated that if merely by an inadvertment mistake, the court took the reply of the petitioner to the application Under Section 488 Cr. P C before setting aside the earlier ex-porte order against him and even proceeded with that application, it cannot be deemed that he had impliedly set aside the ex-parte order. The final order on the application Under Section 488 Cr. P C had already been passed by the learned Magistrate on 4-7-76 and unless it was set aside either by himself or by a superior court, that order cannot be wiped out merely because under the mistaken notion, the court proceeded on the assumption that the application Under Section 488 Cr.PC was to be disposed of. No doubt the court was under a mistake but at the same time, the petitioner also was equally responsible for this mistake. It was his duty also to have pointed out to the court the mistake, which was being committed and should not have taken advantage of the inadvertent mistake of the court.
4. Now coming to the first contention, it must be pointed out that the proceedings in this case are as old as from 6-9-65. The petitioner having been served with the notice of this application and as found by the two courts below, the service was a personal service, did not care to appear before the court and in these circumstances, the court below was compelled to take ex-parte proceedings against him on the presumption that he was wilfully a voiding, his attendance. I do not see any reason to interfere with this concurrent findings of fact by the two courts below.
5. It was urged by the learned counsel for the petitioner that after the remand of the case by this Court the lower court accepted the reply of the petitioner to the application Under Section 488 Cr.P C, took evidence of the parties and then heard the matter and thus when the evidence has come on the record, it should not be ignored and the matter should be either decided on merits by this Court or is sent back to the trial court. As already stated above, if the court below under a mistake, to which the petitioner himself was a party took the reply to the application Under Section 488 Cr. PC on record and also proceeded to take evidence in that respect, that reply and the evidence cannot be formed legally speaking the part of the record and, therefore, the petitioner is not entitled to get the case decided on the basis thereof.
6. The learned counsel also urged that the non-petitioner Smt. Gurdeo Kaur has not cared to appear in respect of her application Under Section 488 Cr. PC and in that view of the matter,the order granting maintenance does not deserve to continue. In my opinion, this contention is also devoid of force. Initially when the matter was being proceeded with ex-parte, against the present petitioner Smt. Gurdeo Kaur had come to the witness box and was examined and, therefore, there was no necessity for her to appear against when the ex-parte order had in fact not been set aside.
7. It was also contended by the learned counsel that the petitioner did not get any opportunity to establish that in fact he had never been personally served and that in any case he had sufficient cause for not appearing before the court. In the circumstances of the case, I do not find force in this contention also. As already stated above, initially of course, the court and the parties proceeded under a wrong assumption that the proceedings were being taken, within the time in respect of the main application Under Section 488 Cr. PC and it was on 24-7-76 that the mistake was discovered. Then the learned Magistrate fixed the case for arguments on the application for setting aside ex-parte order and arguments were heard on 27-7-76 as already stated above. When arguments were to be heard in respect of the application for setting aside the ex-parte order, it was for the petitioner to have asked the court to give him an opportunity to produce evidence to show that he had not been served or that he had sufficient cause for his non-appearance but this was not done. No opportunity was asked for and the petitioner proceeded with the arguments of the case and when unfortunately the order went against him, he cannot now be allowed to turn round and say that he did not have the proper opportunity.
8. In these circumstances, I do not find any force in this petition Under Section 482 Cr. PC and hereby dismiss it.