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Md. Akbar Ali Sardar Vs. Firoze Khatoon Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ1654
AppellantMd. Akbar Ali Sardar
RespondentFiroze Khatoon Bibi and ors.
Cases Referred(Smt. Parson Kaur v. Bakshish Singh). It
Excerpt:
- .....under section 125 of the code claiming maintenance. an ex parte order was passed by the learned magistrate on 25-2-1976. it is the case of the petitioner that the petitioner did not know anything about the case filed against him, as such he could not appear and an ex parte order was passed against him. after having come to know of the order only on 20th august 1976 in connection with the execution case arising out of the maintenance proceeding, the petitioner filed an application on 1-9-1976 for setting aside the ex parte order and for restoration of the case. the said application was rejected by the learned magistrate only on the ground of limitation holding that the application was filed beyond three months from the date of the order. being aggrieved, the petitioner has come.....
Judgment:
ORDER

N.C. Mukherji, J.

1. This Rule arises on an application Under Sections 401 and 482 of the Criminal Procedure Code read with Article 227 of the Constitution and is directed against ex parte order dated 25-2-76 and order dated 22-12-1976 passed by the learned Judicial Magistrate in Case No. 3 of 75 Under Section 125 of the Code and also rejecting the restoration application of the petitioner Under Section 126(2) of the Code.

2. The facts of the case may briefly be stated as follows :--

The opposite party filed an application Under Section 125 of the Code claiming maintenance. An ex parte order was passed by the learned Magistrate on 25-2-1976. It is the case of the petitioner that the petitioner did not know anything about the case filed against him, as such he could not appear and an ex parte order was passed against him. After having come to know of the order only on 20th August 1976 in connection with the execution case arising out of the maintenance proceeding, the petitioner filed an application on 1-9-1976 for setting aside the ex parte order and for restoration of the case. The said application was rejected by the learned Magistrate only on the ground of limitation holding that the application was filed beyond three months from the date of the order. Being aggrieved, the petitioner has come up to this Court.

3. In the first place it is stated by Mr. Satyajit Mondal, learned Advocate appearing on behalf of the petitioner, that when on 25th of February 1976 the learned Magistrate passed an ex parte order he did not satisfy himself whether the summons was duly served on the petitioner. It appears that there is an endorsement refused on registered post card which is said to have been sent to the petitioner. From the endorsement refused it is sometimes held that the service was duly effected, But in the present case the petitioner came up with a case before the learned Magistrate that the summons was never offered to him and he did not refuse to accept the same. It was only on 20th of August 1976 he came to know about the ex parte order passed on 25th of February 1976. Mr. Mondal submits that the limitation will run from the date of the knowledge and not from the date of the order. On this point there are conflicting decisions of several High Courts. I requested Mr. Prasun Chandra Ghosh learned advocate who was present in Court at the time of hearing to assist me to decide the point of limitation. Mr, Ghosh was kind enough to refer me to an unreported decision of this Court in Criminal Revision No. 439 of 1963. He has also referred to decisions reported in : AIR1966AP50 and 1974 Cri LJ 1234 (All). I am thankful to Mr. Ghosh for the assistance rendered by him. Mr. Mondal places before me a decision of this Court reported in : AIR1971Cal244 (Hemendra Nath Choudhury v. Smt, Archana Choudhury). In this case Talukdar, J. relying on the principle of law laid down by their Lordships of the Supreme Court in : [1962]1SCR676 (Harish Chandra v. Deputy Land Acquisition Officer) held that 'If there was no knowledge on the part of the affected party about the relevant proceedings and the ultimate order passed ex parte therein, the period of limitation is not to run from the date of the order but from the date of the knowledge. Anvother interpretation will unnecessarily circumscribe the intention of the legislature and would not be expedient in the interests of justice. If the ex parte order for maintenance is vitiated because of the absence of a legal service, the ultimate order passed is not a legal and proper one and as such there is no question of any limitation running from the same.' In : AIR1966AP50 (Johra Begum alias Aysha Begum v. Mohammed Ghouse Qadri Qadeeri) Jaganmohan Reddy, J. relying on : [1962]1SCR676 held that 'The limitation for setting aside an ex parte order of maintenance begins from the date of knowledge of the order to the aggrieved party and not from the date of passing of the order.' His Lordship also considered the contrary view expressed in : AIR1950Mad153 . In 1974 Cri LJ 1234 (All) (Dhani Ram v. State) relying on the decisions reported in : [1962]1SCR676 and : AIR1966AP50 it was held that 'the limitation for setting aside an ex parte order of maintenance begins from the date of knowledge of the order to the aggrieved party and not from the date of passing of the order'. In an unreported decision of this Court in Criminal Revision No. 439 of 1963 disposed of by K. C. Sen, J. on 28-8-1964 (Cal) while considering whether the petitioner against whom an ex parte order of maintenance was passed could take up a plea that he did not know of the ex parte order and as such he could not file the application within time as he was prevented by fraud practised by the opposite party it was held that 'There being no provision in the latter part of the proviso to Section 488(6) expressly excluding the provision of Section 18 of the Indian Limitation Act referred to before it will be attracted in suitable cases as enumerated therein'. In coming to such conclusion His Lordship relied on a similar observation by this Court in a Bench decision reported in 83 Cal WN 227 : AIR 1929 Cal 325 (Raja Sati Prosad Garga v. Gobinda Chandra).

4. Mr. Jyotish Chandra Bose, learned Advocate appearing on behalf of the opposite party, contends that Section 488(6) of the old Code and proviso to Sub-section (2) of Section 126 of the new Code very clearly lay down that 'an ex parte order may be set aside for good cause shown on an application made within three months from the date thereof.........'. If the provisions referred to above are interpreted to say that the limitation runs from the date of the knowledge of the order that would be adding something to the sections which are not there and this adding of some words is not permitted in law, Referring to the decision reported in : [1962]1SCR676 Mr. Bose submits that the principle laid down in that case does not apply to the facts of the present case. In the said case it was an award by the collector. An award in a land acquisition matter must be considered as different from an ex parte order passed in a Court proceeding. Talukdar, J. has considered this aspect and has held 'The provisions contained in the proviso to Section 18(2) of the Land Acquisition Act. 1894 are pan materia with the provisions contained in the proviso to Section 488(6) of the Code of Criminal Procedure relating to limitation', In support of his contention Mr. Bose first refers to a decision reported in : AIR1950Mad153 (A. S. Gonvindan v. Mrs. Margaret Jayamal). This case was considered by Talukdar J. in : AIR1971Cal244 and his Lordship disagreed with the view expressed in this decision, It has been held in this : decision that 'The period of three months does not mean three months from the date of knowledge of the order. Where the application is made more than three months from the date of the order, it is liable to be dismissed'.

5. The next case referred to by Mr. Bose has been reported in (1962) 2 Cri LJ 581 (Punj) (Hari Singh Ishar Singh Jat v. Dhanno Hari Singh), In this case also it has been held that 'An application to set aside an ex parte order of maintenance has to be reckoned from the date of the ex parte order and not from any other date'.

6. The last case cited by Mr. Bose has been reported in AIR 1971 Punf and Haryana 88 : 1971 Cri LJ 489 (Smt. Parson Kaur v. Bakshish Singh). It has been held that 'the limitation for setting aside an ex parte order begins from the date of the order and not from the date of the knowledge of the order'. In this case, however, his Lordship expressed an opinion that the aggrieved party can seek extension of time by showing that there was sufficient cause for his not coming to the Court within the prescribed period from the date of the ex parte order. For that purpose, he is entitled to an opportunity to satisfy the Court that there is sufficient ground for condoning the delay in coming to the court to have the ex parte order set aside.

7. Considering all the decisions referred to above I am inclined to rely on the proposition of law laid down in : [1962]1SCR676 and the unreported decision in Criminal Revision No. 439 of 1963 (Cal). I hold that limitation to set aside an ex parte order is 3 months from the date of the knowledge of the order. It is however, for the petitioner to prove that he came to know of the order only on the date stated in the petition and not earlier. As the learned Magistrate rejected the application of the petitioner on the ground that the application is out of time having been Bled beyond three months from the date of the order, this question was not considered by the learned Magistrate.

8. In the result, the application succeeds and the Rule is made absolute. The order passed by the learned Magistrate is set aside. The case is sent back to the learned Magistrate who is directed to dispose of the application filed by the petitioner for setting aside the ex patre order. In the disposal of the said application the learned Magistrate will consider whether the petitioner came to know of the ex parte order on the date as alleged by him, The learned Magistrate is directed to dispose of the application as early as possible as the case is pending for a long time.


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