SATRUGHNA ADAK v. SONALI ADAK NEE TUNG — 1993 DIGILAW 177 (CAL)

AMAL KANTI BHATTACHARJI, J. ( 1 ) THIS revisional application under Section 401, read with Section 482, Cr. P. C. is against an order of the Sub-Divisional Judicial Magistrate, Uluberia, rejecting an application filed by the petitioner for setting aside an ex parte order of maintenance under Section 126 (2), Cr. P. C. The learned Magistrate has rejected the application on the basis of a Division Bench judgment of this Court reported in 1988 (3) Crimes 525 : (1989 Cri LJ 488) Amal Guha v. State of West Bengal. In the present case the opposite party wife filed an application under Section 125, Cr. P. C. claiming maintenance at the rate of Rs. 300/- per month against the husband-petitioner. The Magistrate served notice of the application on the husband which was at the first instance returned unserved. Subsequently fresh notice was sent by post and the Magistrate accepted the service as proper. As, however, the husband did not appear to contest the case the same was heard ex parte, after several adjournments, on 20-7-1991. Thereafter, on 27-11-1991 the husband filed an application under S. 126 (2), Cr. P. C. stating that he was not served with any notice and that as such he could not appear before the Magistrate to contest the case. This application was opposed by the other party on the ground that it was filed after the expiry of three months which is the period of the limitation fixed for setting aside such an ex parte order. It was claimed by the petitioner husband that limitation would run in this case from the date of knowledge of the ex parte order, but the same was negatived by the Magistrate on the basis of the decision of the Division Bench of this Court referred to above. ( 2 ) NOTICE of this revisional application was duly served on the O. P. wife as would be evident from the affidavit of service filed by the petitioner. The O. P. , however, did not appear and hence this revisional application is heard ex parte. ( 3 ) ON behalf of the petitioner Mr. Gobindalal Ghosh submits that the Magistrate has not correctly disposed of the application for setting aside the maintenance order and that the Division Bench judgment relied on by him is not applicable here. The O. P. , however, did not appear and hence this revisional application is heard ex parte. ( 3 ) ON behalf of the petitioner Mr. Gobindalal Ghosh submits that the Magistrate has not correctly disposed of the application for setting aside the maintenance order and that the Division Bench judgment relied on by him is not applicable here. In this connection he has relied on a good number of decisions of this High Court and other High Courts and claimed that the points discussed in those decisions have not been dealt with in the Division Bench Judgment referred to by the Magistrate and that the ratio decidendi of those decisions has not been negatived by the relevant Division Bench. ( 4 ) SO far as the period of limitation applicable to an application under S. 126 (2), cr. P. C. is concerned there are plethora of decisions touching the point. In some cases it has been decided that the period of limitation of three months from the date of passing the ex parte order of maintenance as referred to in the proviso to Sub-Section (2) of S. 126, Cr. P. C. is a firm one there being no scope for extending this period on any ground. In others the point has been discussed from different angles with particular reference to the intent of the legislature and has been held that in suitable cases this period may start from the date of knowledge where there has not been a proper order holding the proceeding ex parte. On account of these conflicting decisions the matter was referred to a Division Bench of this Court but the said Bench without discussing the propriety or otherwise of the views for or against the period of limitation discussed in different cases has by a cryptic judgment (contained in two paragraphs only) held that an application under Section 126 (2), Cr. P. C. should be filed within three months from the date of the order. It has been urged by the learned lawyer for the petitioner that the Division Bench has not considered the principles discussed in the majority of the judgments which were based on certain Supreme Court decisions and that as such the point of controversy remains where it was. It has been urged by the learned lawyer for the petitioner that the Division Bench has not considered the principles discussed in the majority of the judgments which were based on certain Supreme Court decisions and that as such the point of controversy remains where it was. ( 5 ) IT is embarrassing on the part of single Bench to comment on the decision of a Division Bench, but as the Division Bench has not dealt with the controversy so eloquently pointed out by many learned Judges and as the point argued here can be considered even without disturbing the decision of the Division Bench, I would like to discuss the matter, anew, rather elaborately, so that the misconception created may be removed. ( 6 ) BEFORE considering the legal points it would be convenient to quote Sub-Section (2) of Section 126, Cr. P. C. The said Sub-Section runs as follows :-" (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases : provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully 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. "it would be seen from the main Sub-Section that the intent of the legislature is to record of evidence in such proceedings in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with, in the presence of his pleader. In other words, the Section expressly prohibits that no evidence should be taken behind the back of the person against whom an order is sought. In other words, the Section expressly prohibits that no evidence should be taken behind the back of the person against whom an order is sought. However, although every endeavour is to be made to have the matter heard in presence of the opposite party, but if the said party persists in not contesting the matter, the Court has actually no power to compel his attendance. In such a case the Court can proceed to hear the matter ex parte but not before he comes to a definite conclusion that the opposite party against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully neglecting to attend the Court. In short, the Court can pass an ex parte order only when it is satisfied that the notice of the proceeding has been duly served on the other party or that if the same has not been served, he was willfully avoiding service. Even when the Magistrate is satisfied that the notice has been served he will not proceed to dispose of the proceedings ex parte without being satisfied that the other party is willfully neglecting to attend the Court in spite of the service of the notice. An ex parte order is possible only after satisfying these essential requirements of this Sub-Section. ( 7 ) MR. Ghosh refers to AIR 1971 Cal 244 : (1971 Cri LJ 817), Hemendra Nath Choudhary v. Archana Choudhury, 1977 (2) Cal LJ 347 : (1977 Cri LJ 1654), Md. Akbar Ali Sardar v. Firoze Khatun Bibi, 1983 Cri LJ 1672, Bina Ganguly v. Rashbehari Ganguly, 1987 Cri LJ 399 : ( AIR 1987 Ker 110 ) (FB) of Kerala High Court (Balannair v. Bhabani Amma Valsalamma, AIR 1963 Mysore 239 : (1963 (2) Cri LJ 293), State v. Bhim Rao, 1985 Cri LJ 1294, Sukhirthammal v. Subramanian in support of his argument. In AIR 1971 Cal 244 : (1971 Cri LJ 817) a single Bench of this High Court after discussing at length the legal provisions regarding the circumstances under which an ex parte order can be passed in a maintenance proceedings held that in the absence of knowledge on the part of the affected party about the proceedings for maintenance and the ex parte order passed therein the period of limitation for setting aside the order would commence to run only from the date of the knowledge of the order and not from the date of the knowledge of the date of the order. It was case under Section 488 of the old Code of Criminal Procedure, the relevant provisions of which were similar to those of Section 126 of the new Code. In this case the learned Judge relied on a decision of the Supreme Court in Harish Chandra v. Deputy Land Acquisition Officer, AIR 1961 SC 1500 : (1961 All LJ 650) and quoted the following observations of the Court at page 1504 (of AIR ).-"the knowledge of the party affected by the award, either actual or constructive, is an essential requirement of fairplay 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 constructive. In our opinion, therefore, it would be unreasonable to construe the words 'from the date of Collector's award' used in the proviso to Section 18 in a literal or mechanical way". The learned single Judge also held that the provisions contained in the proviso to S. 18 (2) of the Land Acquisition Act, 1894 are pari materia with the provisions contained in the proviso to S. 488 (6) of the Criminal Procedure Code, 1898, relating to limitation. The learned single Judge also relied on AIR 1963 Mysore 239 : (1963 (2) Cri LJ 293), referred to above. The learned single Judge also relied on AIR 1963 Mysore 239 : (1963 (2) Cri LJ 293), referred to above. ( 8 ) IN 1977 (2) Cri LJ 347 : (1977 Cri LJ 1654) another single Bench of this Court relying on a number of decisions including AIR 1971 Cal 244 : (1971 Cri LJ 817) and AIR 1961 SC 1500 : (1961 All LJ 650) also held that the period of limitation for setting aside an ex parte order granting maintenance is three months from the date of knowledge of the order. ( 9 ) IN 1983 Cri LJ 1672 another single Bench of this Court held that in an application for setting aside an ex parte order under Section 126 (2) aid of Section 5 of the Limitation Act could be taken. ( 10 ) IN 1987 Cri LJ 399 : ( AIR 1987 Ker 110 ) a Full Bench of the Kerala High Court had the occasion to consider the circumstances under which an ex parte order in a maintenance proceeding under Section 125, Cr. P. C. could be passed and what was the remedy left to the aggrieved party against such an ex parte order. It was held by the Court that before proceeding to hear and determine the case ex parte the Magistrate had to apply his mind to the question whether the opposite party was willingly avoiding service or willfully neglecting to attend the Court and be satisfied that there had been such willful conduct on his part. It was further held that the Magistrate could not proceed ex parte without arriving at such satisfaction. As regards the remedy available to the aggrieved party it was held that besides the remedy under Section 126 (2) there was also the alternative remedy by way of revision petition available to the party. The Court further held that such an ex parte order could be set aside if the application was filed within the period of three months from the date of the order but that even if the application was filed beyond that period it was open to him to invoke S. 5 of the Limitation Act. The Court further held that such an ex parte order could be set aside if the application was filed within the period of three months from the date of the order but that even if the application was filed beyond that period it was open to him to invoke S. 5 of the Limitation Act. ( 11 ) IN AIR 1963 Mysore 239 : (1963 (2) Cri LJ 293) also the Court emphasized on the subjective satisfaction of the Magistrate as to willful neglience of the husband in attending the court before passing an ex parte order. The Court analysed the meaning of the words "order so made" in the second part of the proviso to Section 488 (6) of the Cr. P. C. 1898 (corresponding to the proviso to Sub-Section (2) of Section 126 of the Criminal Procedure Code 1973) and held that the said words implied an order passed in conformity with the first part of the proviso. The Court further held that if the order itself was not in conformity of the first part of the proviso, the second part of the proviso prescribing a period of three months from the date of under so made would not come into operation. This gives a new dimension to the scope of determining the period of limitation for setting aside an ex parte order. The conclusion is that if the order for holding proceeding ex parte was not made in due compliance with the requirements of the first part, the period of limitation could not be decided on the basis of such an order. ( 12 ) IN 1985 Cri LJ 1294 a single Judge of the Madras High Court has fully discussed the scope of an ex parte order under Section 126 (2) and the period of limitation to be considered for setting aside such an order. In this case also much emphasis has been given on the words "any order so made" occurring in Section 126 (2 ). The following observations made in paragraph 15 of the Judgment are most useful.-"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 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 willfully avoiding service or willfully 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 willful avoidance of service or willful 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 willfully avoiding service or willfully neglecting to attend the Court. " ( 13 ) IT would be seen from the discussion in this case that the Court is of the view that if the Magistrate is not satisfied about the prerequisite conditions that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully neglecting to attend the Court, there is no scope for passing an ex parte order. In such a case the order will not be an "order so made" and as such the period of limitation prescribed in the Section would not apply. In such a case the order will not be an "order so made" and as such the period of limitation prescribed in the Section would not apply. The learned Judge in this case has also relied on the rule of construction set out by the Supreme Court in Raja Harish Chandra Singh v. Deputy Land Acquisition Officer AIR 1961 SC 1500 : (1961 All LJ 650) for importing the word 'knowledge' in the proviso to Section 126 (2 ). After discussing all aspects of the question the Court has come to the conclusion that in cases where the Court is satisfied that there was either willful avoidance of service or willful negligence on the part of the person concerned to attend the Court after due service of notice, the application has to be filed within three months from the date of the ex parte order and not from date of knowledge of the said order. In other category of cases wherein the first limb of the proviso is not satisfied an application, according to the Court, 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. ( 14 ) COMING now to the Division Bench decision of this Court in Amal Guha v. State of West Bengal reported in 1988 (3) Crimes 525 : (1989 Cri LJ 488) it appears that the Court has given its opinion regarding the scope of extending the period of limitation under Section 126 (2) in the following lone paragraph.-"2. In view of the divergence of opinion as to whether in an application under Section 126 (2) of the Code of Criminal Procedure the period of three months should be counted from the date of the ex parte order sought to be set aside or from the date of the knowledge of the petitioner thereof, this case has been referred by the learned Judge pressing over a single Bench of this court to the Division Bench. We are inclined to accept the decision to the effect that such an application for setting aside an ex parte order would have to be filed within three months from the date of the order. We are inclined to accept the decision to the effect that such an application for setting aside an ex parte order would have to be filed within three months from the date of the order. The plain grammatical meaning of the provisions contained in Section 126 (2) of the Code is that such an application for setting aside an ex parte order should be filed within three months from the date of the order itself. There is no scope within the limits of the language of the Section for the inference that such an application may be filed within three months from the date of knowledge. We, accordingly, uphold that such an application under Section 126 (2) should be filed within three months from the date of the order. The application under Section 126 (2) having been filed long after three months from the date of the ex parte order, the application was rightly rejected by the learned Magistrate. " ( 15 ) IT is found that the Division Bench has not discussed the import of the word "knowledge" in this Section on the basis of principle enunciated by the Supreme Court in Raja Harish Chandra's case. Indeed the decision of the Division Bench would be applicable when the Magistrate was satisfied that the husband was willfully avoiding service or willfully neglecting to attend the Court. In such a case the question of knowledge would not be considered and the period of limitation would be three months from the date of the ex parte order without any further consideration. But if the aggrieved husband has any real grievance, that is, he has been fraudulently kept out of the knowledge of the proceeding by any intriguing wife, what would be the remedy available to him ? It may be that he really was not aware of the filing of the maintenance proceeding against him and he may come to know of the proceeding after the expiry of three months, was not any remedy available to him in such a case ? This question has neither been discussed nor decided in the Division Bench judgment. The judgment is a cryptic one and it does not discuss the reasoning given by the different courts in support of their judgments. It also does not mention why the principle of knowledge enunciated by the Supreme Court in Raja Harish Chandra's case should not be followed. This question has neither been discussed nor decided in the Division Bench judgment. The judgment is a cryptic one and it does not discuss the reasoning given by the different courts in support of their judgments. It also does not mention why the principle of knowledge enunciated by the Supreme Court in Raja Harish Chandra's case should not be followed. So the judgment itself can be followed only if there was nay willful default on the part of the husband to accept the notice or to attend the Court. The underlying principle of the legislature being that the order of maintenance under Section 125, Cr. P. C. should be passed in the presence of the opposite party or his lawyer, an ex parte order is an exception only and such an exception can be resorted to only after due observance of the pre-requisite conditions of normal procedure. I am therefore, of opinion that the views expressed by the Division Bench of this High Court do not absolutely prohibit the phenomenon of knowledge in computing the period of limitation under Section 126. ( 16 ) LASTLY, whether the aggrieved person who filed an application for setting aside an ex parte order is entitled to have the benefit of s. 5 of the Limitation Act. Section 5 of the said Act reads as follows :-"5. Extension of prescribed period in certain cases.- any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. " ( 17 ) IT would be seen that Section 5 provides for the admission of appeal or application mentioned in the said Section after the "prescribed period". The expression "prescribed period" has been defined in clause (j) of Section 2 of the Act. It means the period of limitation computed in accordance with the provisions of the Limitation Act. The period of limitation as defined in clause (j) means the period of limitation prescribed for any suit, appeal or application by the Schedule of the Act. In the Schedule itself, however, an application under Section 126 of the Criminal Procedure Code has not been mentioned. The period of limitation as defined in clause (j) means the period of limitation prescribed for any suit, appeal or application by the Schedule of the Act. In the Schedule itself, however, an application under Section 126 of the Criminal Procedure Code has not been mentioned. But in view of Sub-Section (2) of S. 29 of the Act where any special or local law prescribes for any suit, or application a period of limitation different from the period prescribed by the Schedule, for the purpose of determining the period of limitation prescribed for any suit, appeal or application by such special or local law the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule. Provisions of Sections 4 to 24 of the Act would, therefore, be applicable for determining the period of limitation prescribed by the special or the local law to the extent they are not expressly excluded by such special or local law. There is nothing in Section 126 of the Criminal Procedure Code to expressly bar the application of Sec. 5 of the Limitation Act. So Section 5 may be availed of for computing the period of limitation prescribed in Section 126. ( 18 ) FROM the copies of the order sheets annexed to the revision petition it, however, does not appear that the Magistrate was actually satisfied that the O. P. husband was willfully avoiding the service or willfully neglecting to attend the Court. Order dated 1-2-1991 is the relevant order which is as follows :-"the petitioner is absent by petition and prays for time S/r, of notice is received which is properly served. O. P. does not appear. To 5-3-19991 for ex parte hearing. Sd/- K. K. , Dey. S. D. J. M. (U ). ( 19 ) THERE is nothing to show that the Magistrate had considered the question whether the O. P. husband actually neglected to attend the Court even on receipt of the notice or that he was willfully avoiding service. It was actually a routine order. In view of the stringent provisions of Sub-Section (2) of Section 126, an ex parte order could not be made as a matter of course in such circumstances. It was, therefore, also a good case for revision. It was actually a routine order. In view of the stringent provisions of Sub-Section (2) of Section 126, an ex parte order could not be made as a matter of course in such circumstances. It was, therefore, also a good case for revision. Incidentally it is found from order dated 11-7-1991 that P. W. 1 and P. W. 2 were examined and cross examined in full. I take it that the words "cross-examined" have been wrongly written, as the matter was being heard ex parte. ( 20 ) AS the Magistrate has not recorded his satisfaction that the husband was willfully avoiding service or that on being served with notice was willfully neglecting to attend Court, the ex parte order cannot be categorised as an "order so made" as mentioned in the Proviso to Sub-Section (2) of Section 126, Cr. P. C. So the rigid period of limitation mentioned in the said Section would not be applicable here in the special circumstances of the case. The facts of this case are, therefore, distinguishable from Amal Guha's case decided by the Division Bench. Alternatively, if the petitioner filed an application under Section 5 of the Limitation Act, the same could have also been considered by the Magistrate. ( 21 ) FOR all the above reasons I am inclined to hold that the petitioner has a good case for having his petition for setting aside the ex parte order heard. This revisional application accordingly succeeds. The trying Magistrate is directed to hear the petitioner's application for setting aside the ex parte order according to law. The impugned order dated 28-12-1991 passed by the S. D. J. M. , Uluberia is set aside. All interim orders are vacated. A xerox copy of this order may be given to the petitioner on the used undertaking. Petition allowed.