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Sukhirthammal Vs. Subramanian - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1985CriLJ1294
AppellantSukhirthammal
RespondentSubramanian
Cases ReferredMeenakshi Ammal v. Somasundara Nadar
Excerpt:
- - (2) he came to know of the ex parte order passed against him only on receipt of a warrant from the execution court on 16-9-1978; and (3) he filed an earlier petition to set aside the ex parte order on 28-11-1978 (sic) well within the period of three months from the date of his knowledge of the ex parte order. the petitioner stated in his affidavit that he came to know about the ex parte order on 16-9-78. the application for setting aside the ex parte order was filed by the petitioner on 28-11-1978 well within 3 months from the date of order. while on the one hand it is the speedy remedy provided for deserted parents, women and children who have come to grief not due to any fault of their own and hence should be zealously guarded by courts, on the other hand person who is adversely.....orderratnavel pandian, j.1. this revision is preferred by sukhirthammal challenging the legality of the order made in m.p. no. 3839/78 and m.p. no. 6062/80 in m.c. 283/78 on the file of the iv, metropolitan magistrate, saidapet, madras.2. the brief facts necessary for the disposal of this revision are as follows : the petitioner filed m.c. 283/78 under section 125, cri. p.c., before the iv, metropolitan magistrate, madras, against her husband, the respondent herein (subramanian), seeking an order of maintenance for herself and her to minor children. on 29th june, 1978 an ex parte order was passed by the learned magistrate directing payment of a sum of rs. 250 p.m. to the petitioner and' rs. 100 p.m. to each of the minor children, all totalling a sum of rs. 450 per mensem. the respondent.....
Judgment:
ORDER

Ratnavel Pandian, J.

1. This revision is preferred by Sukhirthammal challenging the legality of the order made in M.P. No. 3839/78 and M.P. No. 6062/80 in M.C. 283/78 on the file of the IV, Metropolitan Magistrate, Saidapet, Madras.

2. The brief facts necessary for the disposal of this revision are as follows : The petitioner filed M.C. 283/78 under Section 125, Cri. P.C., before the IV, Metropolitan Magistrate, Madras, against her husband, the respondent herein (Subramanian), seeking an order of maintenance for herself and her to minor children. On 29th June, 1978 an ex parte order was passed by the learned Magistrate directing payment of a sum of Rs. 250 p.m. to the petitioner and' Rs. 100 p.m. to each of the minor children, all totalling a sum of Rs. 450 per mensem. The respondent filed a petition in M.P, No. 3077/78 before the learned Magistrate for setting aside the ex parte order; but that petition was dismissed on 2-11-1978 due to the non-appearance of the respondent. Subsequently, another petition was filed in M. P. 3839/78 by the respondent on 4-11-1978 for setting aside the order, D/- 29-6-1978, stating that the respondent had not been served with notice in the maintenance petition to appear before the Court. On 23-2-1979, on the consent of the parties, the Magistrate passed the following order:

The petitioner respondent herein agrees to pay the cost of Rs. 75 -to. the respondent/ petitioner by next hearing date.

Below this order, the respondent Subramanian and his counsel have signed, stating that they have no objection. The respondent has made the following endorsement on the petition : (Vernacular omitted Ed.)

On 6-4-1979, the next hearing date, the petitioner refused to accept the sum of Rs. 75. Therefore, the Court directed the respondent to deposit the amount of Rs. 75 in Court. Accordingly the amount was deposited by the respondent and on such deposit the petition was allowed on 6-4-1979.

3. Aggrieved by the said order of the Magistrate, the petitioner preferred a revision in Cr. R.C. 372/79 before this Court and same was allowed. The respondent took up the matter before the Supreme Court in S.LP. (Cr.) No. 1286/80 and the Supreme Court passed the following order on 7-5-1980:

Upon hearing counsel, the Court directed the learned Magistrate to dispose of the application filed by the petitioner for setting aside ex parte order, D/- June 29, 1978, after hearing both the sides and after allowing the petitioner to file a proper affidavit in support of the application for setting aside the ex parte order. The S.L.P. shall stand disposed of accordingly.

4. In compliance with the said direction of the Supreme Court, the respondent filed M.P. No. 6062/80 on 30-8-1980, accompanied by an affidavit, seeking to set aside the ex parte order, raising the following grounds:

(1) He was not at all served with the summons to appear before the Magistrate in the maintenance proceedings;

(2) He came to know of the ex parte order passed against him only on receipt of a warrant from the execution Court on 16-9-1978; and

(3) He filed an earlier petition to set aside the ex parte order on 28-11-1978 (sic) well within the period of three months from the date of his knowledge of the ex parte order.

5. The petitioner filed a counter inter alia submitting that the respondent wilfully avoided service of summons taken by her for the following three dates of adjournment, viz., 1-6-1978,15-6-1978 and 29-6-1978 and hence the learned Magistrate passed the ex parte order on 29-6-1978, that the respondent was aware of the proceedings right from the date of institution thereof, that it is false to state that he came to know of the ex parte order only on receipt of the warrant from the execution Court, that the petitioner was not aware of the earlier petition mentioned by the respondent to have been filed on 28-9-1978 and that the petitioner was served on 18-12-1978 with a copy of the petition filed by her husband, the respondent, on 4-11-1978 (evidently referring to M.P. No. 3839/78). It was further stated in the counter that as M.P. 383,9/78 was filed only on 4-11-1978, that petition was not maintainable since it had been filed beyond three months in violation of Section 126(2), Cr. P.C.

6. The learned Magistrate allowed the said application and set aside the ex parte order on the following reasoning:

The petitioner stated in his affidavit that he came to know about the ex parte order on 16-9-78. The application for setting aside the ex parte order was filed by the petitioner on 28-11-1978 well within 3 months from the date of order. The counsel for the respondent contends that as per Section 126(2), Cr. P.C., the petition should have been filed within 3 months from the date of the order, D/-29-6-78 and that the filing of this petition is beyond 3 months' period stipulated under the Code. I am unable to agree with the contention of the counsel for the payment (sic petitioner). The period of limitation of 3 months should be construed only from the date of knowledge of the ex parte order. There is nothing to show that the petitioner was served with summons on the maintenance application. It will definitely work hardship if the ex parte order is not set aside and the respondent could have had remedy after full enquiry. Under these circumstances, I allow the application, setting aside the ex parte order DA 29-6-1978....

It is as against this order, the present revision petition has been filed.

6(a). As I am of the view that neither the petitioner nor the respondent has correctly mentioned -the dates on which M.P. Nos. 3077/78 and 3839/78 were filed for setting aside the ex parte order and the dates on which they were dismissed, and the lower Court also has carried the same mistakes in its order, I shall briefly set out the relevant facts with the correct dates with reference to the records, so as to dispose of the case on the basis of the arguments advanced by both sides.

7. It is not in dispute that the ex parte order in M.C. 283/78 was passed on 29-6-1978. According to the respondent, he got knowledge of this order only on 16-9-1978 when he received the warrant from the execution Court. The respondent filed M.P. 3077/78 for setting aside the ex parte order, but that petition was dismissed for default due to the non-appearance of the respondent, on 2-11-1978. The date on which this M.P. 3077/78 had been filed is not known as that petition is not ' available : However, by necessary implication this M.P. 3077/78 should have been filed earlier to 2-11-1978 and presumably after 16-9-1978. Thereafter, M.P. 3839/78 was filed on 4-11-1978, as seen from the original records. In the said petition, the respondent stated that he was not served with summons to appear before the Court in the maintenance proceedings. To this petition the petitioner filed a counter contending that it should not be entertained as it had been filed beyond three months from the date of the order. The learned Magistrate, on the strength of a joint endorsement and on the deposit of Rs. 75 towards costs by the respondent, passed an order allowing the said petition. As against this order, the petitioner preferred Cr. R.C. 372/79 before this Court and the same was allowed. Thereupon, the respondent preferred S.LP. 1286/80 before the Supreme Court and the same was disposed of on 7-5-1980, directing the Magistrate to permit the respondent to file a fresh affidavit and then to dispose of the matter afresh after hearing both the parties. Thereafter, the respondent filed the present M.P. 6062/80 on 30-8-1980 and the impugned order has been passed thereon.

8. The question that arises for consideration in the present revision is as to what is the terminus a quo for reckoning the period of limitation for an application to have an ex parte order of maintenance set aside, when it is alleged that the person against whom the said order has been passed was not served with the summons in the maintenance proceedings and that he acquired knowledge of the ex parte order only within three months preceding the date of the application made in this behalf.

9. The answer to this question would indisputably depend upon the construction of the language used in the proviso to Section 126(2), of the present Crl. P.C., 1973, corresponding to the proviso to Section 488(6) of the old Code, on the basis of the accepted channels of interpretation) while keeping in mind the predominant object of Section 125 of the Code, the enforcement of which is by means of a summary procedure as contemplated in Chapter XIV of the Code. While on the one hand it is the speedy remedy provided for deserted parents, women and children who have come to grief not due to any fault of their own and hence should be zealously guarded by courts, on the other hand person who is adversely affected by an ex parte order of maintenance should be enabled, if he is able to show 'good cause' to have the said order set aside, and then afforded a reasonable opportunity to put forth his case against the claim made against him.

10. The proviso to Section 126(2) of the present Cr. P.C., which is relevant for our purpose, reads thus:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

The corresponding proviso to Section 488(6) of the old Crl. P.C., 1898, is as follows:

Provided that if 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 orders so made may be set aside for good cause shown on application made within three months from the date thereof.

It would thus be seen that the language used in both the above provisos in both the Codes is more or less to the same effect as regards the prescription of limitation. A perusal of the said proviso to Section 126(2) reveals that there are two limbs. While the former empowers the Magistrate to decide the matter ex parte, the latter enables him to set aside the same under a given set of circumstances. The first limb of the proviso casts a statutory duty on the part of the Magistrate to satisfy himself that the person against whom an order for payment of maintenance is proposed to be made is either wilfully avoiding service of summons or having accepted the summons, wilfully neglecting to attend the Court and participate in the proceedings. This is the sine qua non for passing an ex parte order of maintenance. On the question whether such an ex parte order passed by a Magistrate, in the absence of such satisfaction referred to supra, is legal or void ab initio and nonest, there is a conflict of judicial opinion, as can be seen from the following decisions.

11. In Smt. Parson Kaurs v. Bakshish Singh a learned single Judge of the Punjab and Haryana High Court has held as follows (Para 7):

The application for setting aside an ex parte order under the proviso to Sub-section (6) of Section 488 of the Cr. P.C., will succeed if sufficient cause is shown. The non-service, or service not effected in accordance with law, may furnish a ground for setting aside the ex parte order, but these matters do not, in any way, affect the period of limitation prescribed under that proviso for an application to set aside the ex parte order. The commencement of limitation would not depend upon the merits of the ex parte order.

Koshal, J., of the Punjab and Haryana High Court, as he then was, who was party to the majority judgment of a Full Bench of that High Court in Joginder Singh v. Balkaran Kaur has completely agreed with the above view. Venkataraman, J., of this High Court, in Meenakshi Ammal v. Somasundara Nadar : AIR1970Mad242 , has after disagreeing with the view expressed by the Kerala High Court in Raghavan Unnithan v. Vijayamma 1963 Mad LJ (Cri) 597 and that of the Mysore High Court in State v. Bhim Rao , to the effect that if there is no proper and valid service of summons, the ex parte order itself would be invalid, held as follows:

It seems to me that while the fact that the procedure prescribed for service of summons in Sections 68 to 71, Cr. P.C., has not been followed on, the prior occasion, may be a good ground for allowing the application to set aside the ex parte, order, the mere non-observance of the proper procedure would not make the ex parte order invalid and entirely liable to be ignored so as to say that the bar of limitation of three months would not apply at all.

However, a contrary view has been taken in the following decisions.

12. Somasundaram, J., in Balakrishna v. Govind Krishnan : AIR1959Mad165 has held .that what the law requires is that the summons must be served personally on the person concerned either by delivering or tendering it to him, that mere knowledge of the summons will not amount to service in criminal and quasi-criminal cases, as, for instance, in the case of maintenance proceedings and that the principle laid down for service of summons in civil cases cannot be applied to-service of summons in criminal cases in criminal Courts. See also Pahilai Rai v. Jettu Bai : AIR1959Pat433 , State v. Bhim Rao and. Raghava Unnithan v. Vijayamma 1963 MLJ (Cri) 597. In all these cases, the ex parte order passed by the Magistrate granting maintenance was set aside on the ground that .the same was not in conformity with the first limb of the proviso to Section 488(6) of the Cr. P.C., 1898.

13. On going through the above rulings holding divergent views, I, with profound respect to the - learned Judges, am unable to share the view that an ex parte order will become invalid if there is no proper and valid service of summons in compliance with the provisions of the Cr. P.C. But, on the other hand, I fully agree with the opinion expressed by Venkataraman, J., in Meenakshi Ammal v. Somasundara Nadar : AIR1970Mad242 and by the Full Bench of the Pun. and Har. High Court in Joginder Singh v. Balkaran Kaur 1972 Cri LJ 83, viz., that the non-compliance with the procedure prescribed for service of summons in the Cr. P.C. may be a good ground for allowing the application to set aside the ex parte order and that the mere non-observance of the proper procedure would not make the ex parte order invalid and entirely liable to be ignored.

14. Now, I shall pass on to the next aspect of the matter relating to the construction of the words used in the Proviso to Section 126(2), Cr. P.C., fixing the period of limitation, in respect of which also there is considerable divergence of opinion. Before adverting to the actual language used in the proviso and the -construction given to it by the decisions of the various High Courts, it would be useful to refer to the well-recognised principle regarding the interpretation of statutes. It is a well-settled and cardinal rule of interpretation of statutes that normally the words used in the Act of Legislature must be given their plain, ordinary and natural meaning unless there is some ambiguity about them. It is words so used which best indicate the intention of the statute. As stated in Craies on Statute Law, 7th Edition, at page 65,

Where the language of an Act is clear and explicit we must give full effect to it, wherever may be the consequences, for in that case the words of the statute speak the intention of the Legislature.

It is not the function of a Court to add words or subtract therefrom by using its imagination unless it is absolutely necessary to carry out the scheme of the Act, or to prevent a mischief and advance a remedy in accordance with the , true intention of the Legislature. In this context, it may not be out of place to mention that in most of the legislative enactments, the period of limitation to set aside the ex parte orders commences from the date of the order, unless expressed otherwise. For example, as per Article 123 of the Limitation Act, 1963, the period of limitation to make an application to set aside an ex parte order passed under R. 6(l)(a) of O. 9, C.P.C., commences from the date of the decree, or where the summons or notice was not duly served, when the applicant had knowledge of the decree. So far as the proviso to Section 126(2) is concerned, a more rigorous prerequisite is contemplated in that there should be either wilful avoidance of service or wilful neglect to attend Court after having accepted service. The word 'wilfully' means 'deliberately, obstinately, purposefully, intentionally or knowingly'. The use of the word 'wilfully' before the words 'avoiding service' or 'neglecting to attend the Court' points out to the obligation cast on the Magistrate to seek from the material placed before him his satisfaction that the person against whom an order for payment of maintenance is proposed to be made is deliberately, intentionally or knowingly avoiding to accept service or neglecting to attend the Court. Therefore, the Magistrate can proceed ex parte against that person only when the material placed before him compels him to come to the conclusion that the person knew about the summons sought to be served upon him and in spite of that knowledge he is deliberately or intentionally avoiding to accept service or deliberately neglecting to attend the Court, unless the condition precedent of one of the two alternatives is satisfied, the Magistrate cannot proceed ex parte against that person.

15. The second limb of the proviso empowers the Magistrate to set aside 'any order so made' for good cause shown on an application within three months from the date thereof. The expression 'any order so made' clearly means an order made in accordance with the preceding part of the said proviso, viz., the first limb, so that if an ex parte order is made after the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, that order would be 'any order so made'. What is essential for an ex parte order to be classified as an 'order so made' is that there should be a finding by the Magistrate of his satisfaction about the wilful avoidance of service or wilful neglect to attend the Court on the part of the respondent to the proceedings and the period of limitation of three months will run only from the date of the order when the said order made is in strict compliance with the first limb of the proviso and not otherwise. At this juncture I would like to express my view that it would always be desirable if the Magistrate, in case he proposes to proceed to hear and determine the case ex parte, indicates in writing his satisfaction that the person against whom the ex parte order has to be made is wilfully avoiding service or wilfully neglecting to attend the Court.

16. Now, let me refer to some of the decided cases, some taking a strict view and others adopting a more liberal one.

17. Somasundaram, J., in A. S. Govindan v. Mrs. Margaret Jayammal : AIR1950Mad153 , took the view that under the proviso to Clause (6) of Section 488 Cr. P.C., the application to set aside the ex parte order must be made within three months from the date of the order and not within three months from the date of the knowledge of the order. The learned Judge in the said ruling has observed:

I do not see any reason why die section should be read with the word 'knowledge' which is not there. If the intention of the Legislature was that it should be three months from the date of the knowledge of the order, it would have said so. I therefore agree with the lower Court that the application was filed out of time and is liable to be dismissed.

From the facts set out in the judgment it is not clear whether the aggrieved person in that case had wilfully avoided service of summons or wilfully neglected to attend the Court and whether he had given any good cause for making an application to set aside the ex parte order.

18. To the same effect there are two more judgments rendered by two learned single judges of the Punjab and Haryana High Court, one in Hari Singh v. Mst. Dhanno and the other in Parson Kaur v. Bakshish Singh . (It is to be noted that the view taken in the above two cases was overruled by the Full Bench of the same High Court in Joginder Singh v. Balkaran Kaur .

19. Before proceedings to advert to the contrary view expressed by various other High Courts, it is useful to refer to the decision of the Supreme Court in Raja Harischandra Raj Singh v. Deputy Land Acquisition Officer : [1962]1SCR676 . In that case, the question arose as to whether, as per the proviso to Sub-section (2) of Section 18 of the Land Acquisition Act, the, period of limitation of six months to make an application for reference to Court should commence from the date of the award or from the date of knowledge of the award, if the person interested in the award had no notice of the date on which the award was made by the Collector. The Supreme Court, while answering that question, held as follows (at Pp. 1503 and 1504 of AIR)..it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can .be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Simikrly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would 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.

Their Lordships further observed (at P. 1505 of AIR):

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.

The ratio decidendi in the above authoritative judicial pronouncement of the Supreme Court clinches the question of law involved in the present case, since the principles settled by their Lordships could be equally made applicable to the proviso to Section 126(2) of the Crl. P.C.

20. In Muthia Chettiar v. Commr. of Income-tax, Madras : [1951]19ITR402(Mad) , Rajamannar, C. J. speaking for the Bench, has observed thus (at P. 205 of AIR):.if a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed-time, limitation should not be 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 knowledge, of the order.

A reference to the abovesaid passage would clearly indicate that in granting relief to a party adversely affected by an ex parte order, the peculiar facts and circumstances of the case have to be borne in mind and justice rendered accordingly and that a mere literal -or mechanical way of interpreting any section prescribing limitation with reference to justice and fair play would be very unrealistic. However, the most important aspect of these propositions is that assuming that the word 'knowledge' can be imported into any such section, such knowledge need not necessarily be actual, but may be constructive.

21. Now, adverting to the contrary view viz., that the period of limitation prescribed in -the proviso commences from the 'date of knowledge thereof, the following are some of the decided cases of the various High Courts, viz., State v. Bhim Rao , Zohra Begum v. Mohamed Ghous Quadri : AIR1966AP50 , Meenakshi Ammal v. Somasundara Nadar : AIR1970Mad242 and Thankamma v. Appukuttan Nair 1975 KLT 131. The common denominator in all these four cases appears to be that there was . no proper service of summons and this was one of the factors which influenced the Court to grant relief to the aggrieved party. Secondly, in the last three of the above cases, the Court had relied upon the rule of construction set out by the Supreme Court in Raja Harischandra Raj Singh v. Deputy Land Acquisition Officer : [1962]1SCR676 for importing the word 'knowledge' in the proviso to Section 126(2), Cr. P.C. What has not been considered by any of the aforesaid judgments is the scope of the cardinal principle enunciated by the Supreme Court in the sentence 'the knowledge of the party affected by the award, either actual or constructive,....,...must mean the date when the award is, either communicated to the party or is known by him either actually or constructively' It may be noticed that the expression 'actual or constructive' used in the judgment, qualifying the word 'knowledge' is of considerable significance and is of much help in interpreting the language of the proviso to Section 126(2). On such interpretation that the first limb of the proviso is satisfied, one can come to the conclusion that the person against whom the said order of maintenance has to be made had constructive or deemed knowledge of the order although he was not actually aware of the order. Under such circumstances, the bar of limitation contemplated under the proviso has to be construed strictly and unless and until an application is filed within three months from the date of the order, no relief can be granted. If, on the contrary, the first limb of the proviso is not satisfied, the resultant position is that the aggrieved party had neither the actual nor the constructive knowledge of the order and in such circumstances justice would therefore require that the aggrieved party will be well within his rights to come to court seeking to set aside the ex parte order provided, of course, that he had knowledge of the said order only within three months preceding the date of the application. In case a strict interpretation to the effect that the limitation of three months should be reckoned only from the date of the passing of the e* parte order, is mechanically given, there may be an anomalous situation. Let me give an illustration to this. If an applicant under Section 125 Cr. P.C., in collusion and connivance with the process server with whose aid the service of the summons issued in the name of the person against whom the maintenance is claimed, is sought to be effected, procures a fictitious endorsement of wilful avoidance or refusal of service on the part of that person, and as a consequence of such fictitious endorsement, an ex parte order is made and the person against whom the said order is passed comes to know about the order after the efflux of the period of three months from the date of the passing of the order, the ex parte order will become final and conclusive against that person if it could be set aside only within three months of the passing of the order. The service effected upon such a person being collusive and hence sham and no service at all in the eye of law and the person knowing nothing about the proceedings pending against him and the making of the order therein, the period of limitation could not start running from the date when the order was made. If the person acquires the knowledge of the order on a date after the expiry of the period of three months from the date of the order and did not know about it earlier for no fault of his, the object of the remedy provided in the second part of the proviso enabling him to make an application to set aside the order will be frustrated and the remedy rendered nugatory. It is therefore clear that in cases where the Court is satisfied that there was either wilful avoidance of service or wilful negligence on the part of the person concerned to attend the Court after due service of summons, the application has to be filed within three months from the date of the ex parte order and not from the date of the knowledge of the said order. In the other category of cases wherein the first limb of the proviso is not satisfied, an application can be preferred even beyond three months from the date of the order, but it should be preferred within three months from the date of knowledge of the order.

22. At this juncture, a submission was made that an application under Section 5 of the Limitation Act 1963 also can be filed to extend the period prescribed under the proviso to Section 126(2) of the Cr. P.C., since there is no specific and express exclusion of the applicability of Section 5 of the Limitation Act in the said proviso. In support of this proposition, reliance was placed on the judgment of the Supreme Court in Mangu Ram v. Delhi Municipality : 1976CriLJ179 wherein an argument was advanced before the Supreme Court that the time limit of 60 days prescribed in Sub-section (4) of Section 417 of the Cr. P.C., 1898, for the making of an application for special leave under Sub-section (3) of that section, was a mandatory and inexorable time limit which could not be relieved against or relaxed and it excluded the applicability of Section 5 of the Limitation Act, 1963. It was further urged that having regard to the clear and specific language of Sub-section (4) of Section 417, which left no scope for doubt or ambiguity, the High Court was statutorily obliged to reject an application for special leave made after the expiry of 60 days from the date of the order of acquittal and it had no jurisdiction to extend this time limit of 60 days by resort to Section 5 of the Limitation Act, 1963. The Supreme Court, after referring to various decisions rendered on this aspect, finally held that since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29(2) it could be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant could show that he had sufficient cause for not presenting the application within the period of limitation and that it was only if the special or local law expressly excluded the applicability of Section 5 that it would stand displaced.

23. The learned Counsel also cited Meenakshi Ammal v. Somasundara Nadar : AIR1970Mad242 wherein Venkataraman, J., has observed that Section 5 of the Limitation Act, 1963, could be applied for extending the period of limitation if the aggrieved party, against whom the order of maintenance is made, makes out a good cause for such invocation.

24. This question about the applicability of Section 5 of the Limitation Act has become academic in the present case since the dispute in this case is with regard to the tune from which the period of limitation is to be reckoned, viz., whether it would start from the date of the ex parte order or from the date of knowledge on the part of the respondent about the said order. It is to be pointed out that the learned Magistrate himself has given a finding that there is nothing to show that the respondent was served with summons in the maintenance proceedings, that according to the respondent he came to know about the ex parte order only on 16-9-1978 and that he had taken out the application for setting aside the ex parte order on 28-11-1978 well within the period of three months from the date of such knowledge. In the present revision also the petitioner has not placed any material to show that the first limb of the proviso to Section 126(2), Cr. P.C., has been satisfied in this case for this Court to hold that the period of limitation would run from the date of the order. On the other hand, it is clear that the respondent had moved the Court below for setting aside the ex parte order within a period of three months from the date of knowledge of the said order.

25. In view of my above finding, I hold that there is no merit in this revision and accordingly it will stand dismissed.


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