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1996 DIGILAW 263 (PAT)

Bhuneshwar Mahto v. Tusia Devi

1996-04-14

LOKNATH PRASAD

body1996
Judgment Loknath Prasad, J. 1. This is an application under Sec. 482 of the Code of Criminal Procedure for setting aside the order dated 20.12.1989 passed in C No.4429/88 (T.R. No.1637/89) through which the opposite party was allowed monthly maintenance allowance @ Rs. 250.00 under Sec. 123 of the Code of Criminal Procedure from the date of the applicant and also order dated 11.10.1991 passed by 5th Addl. Sessions Judge, Giridih in Criminal Revision No. 5/91. 2. The fact, in short, giving rise to this application is that opposite party, Tusia Devi, filed an application under Sec. 125 of the Code of Criminal Procedure for grant of maintenance allowance as against the petitioner claiming him to be her husband. In the court below somehow or the other, the petitioner could not appear and as there was refusal of the notice by the petitioner according to the trial court, so the maintenance proceeding was heard ex parte and vide order dated 20.12.1989 learned Judicial Magistrate awarded Rs. 250.00 as monthly maintenance allowance to the opposite party and declaring her to be the wife of the petitioner. 3. That subsequently on 4.9.90, the petitioner appeared before the learned Judicial Magistrate for setting aside the ex-parte order as required under Sec. 126(2) of the Code of Criminal Procedure alleging therein that he got information about the ex parte order on 21.8.90. However, learned Judicial Magistrate rejected the prayer by coming to the conclusion that the order was passed on 20.12.1989 and under Sec. 126(2), the petition for setting aside the ex-parte order was to be filed within three months from the date of order and as such the petition was not maintainable and, thus, the petition filed by the petitioner was rejected. Against that order, the petitioner preferred a revision, as mentioned above, but the revisional court also rejected the revision by relying on a decision of the Calcutta High Court reported in 1989 Eastern Criminal Cases 505 Amal Guha V/s. State of West Bengal, Against that order, this application has been preferred. 4. At the very outset, it can be said that this application had already been admitted long ago on 6.1.1992 by a Bench of this Court and as such both the parties have not raised question of the maintainability of the petition at this stage. 4. At the very outset, it can be said that this application had already been admitted long ago on 6.1.1992 by a Bench of this Court and as such both the parties have not raised question of the maintainability of the petition at this stage. The only point raised on behalf of the petitioner is that the order of both the courts below are liable to be quashed for the reason that the trial court and the revisional court rejected the prayer of the petitioner for setting aside the ex parte order of granting maintenance to the opposite party mainly on the ground that the petition had not been preferred within three months from the date of the order as required under Sec. 126(2) of the Code of Criminal Procedure and, in fact, the period of this three months is not to be counted from the date of the order, but from the date of knowledge, otherwise the entire provision for giving an opportunity to the aggrieved party for placing his case for setting aside the ex parte order would be infructuous only for the reason that there is every chance that the aggrieved party may not be aware of the order within three months. 5. On the other hand, learned Counsel for the opposite party, Mr. Ramauter Sharma argued that Sec. 125, Cr.P.C. is a benevolent provision and the intention of the Legislature is quite clear in prescribing the period of limitation in the Act to safeguard the interest of the weaker section of the society, that is, the female, and in support of this contention, he relied upon a decision of the Calcutta High Court reported in 1989 Eastern Criminal Case 505 Amal Guha V/s. State of West Bengal. 6. 6. It is true that on a plain reading of Sec. 126(2) it can be said that the petition is to be filed for setting aside the ex parte order within three months, which may be three months from the date of the order and similar matter was also decided by a Full Bench of the Punjab and Haryana High Court reported in 1972 CrLJ 93 Jogendra Singh V/s. Smt. Balkesan Kaur which was in respect of a proceeding under Sec. 405, Cr.P.C. that is of old Cr.P.C. but his provision of limitation period was similar in the old Code and it was held by the Full Bench of the Punjab and Haryana High Court that in such cases, that is, in respect of the prayer for setting aside the ex parte order, counting of the period would be from the date of knowledge of the order by the opposite party and not from the date of the order. Similar view was also taken by Calcutta High Court in a case reported in 1977 CrLJ 1654 and the learned Single Judge relying upon the principles laid down by the Supreme Court in a case reported in AIR 1961 SC 1500 and that of the Full Bench of the Punjab and Haryana High Court and recorded a findings that the period of limitation will start not from the date of the order but from the date of the knowledge of the party concerned. Similar view was also taken in a case reported in 1966 CrLJ 129 by Andhra Pradesh High Court. 7. So provision of law for counting of the period of limitation as prescribed under Sec. 126(2), Cr.P.C. is more or less consistently laid down by various High Courts in favour of the aggrieved party and the period is to be calculated not from the date of the order but from the date of knowledge, only on that basis of the principle that unless the aggrieved party will be awards of the ex parts order, it is not expected of him to take steps for setting aside the said order. 8. 8. In view of the consistent decisions of various High Courts as mentioned above, I am also of the view that for preferring a petition for setting aside the ex parte order passed under Sec. 125, Cr.P.C. the period of limitation as required under Sec. 26(2) will run from the date of knowledge. This means within three months from the date of knowledge and not from the date of order. 9. In that view of the matter, learned Judicial Magistrate should have allowed the application filed under Sec. 126(2), Cr.P.C. for setting aside the ex parte order and given an opportunity to the petitioner to adduce evidence and should have decided the matter after considering the evidence and hearing the parties. Similarly the order of the revisional court is also bad for the reason that he too rejected the prayer of the petitioner mainly on the ground that no such prayer was made within three months from the date of the order. 10. In the circumstances, this application is allowed and the ex parte order dated 20.12.1989 passed by the Judicial Magistrate, Giridih, in C.No. 429/89 and consequently the order of the revisional court confirming the order of the Judicial Magistrate are hereby set aside and C.No. 429/89 will be heard afresh by the learned Judicial Magistrate subject to the petitioners paying cost of Rs. 750.00 to the opposite party. It is further observed that by order dated 6.1.1992, this Court while admitting this application passed order that the petitioner should go an paying maintenance allowance to the opposite party @ Rs. 250.00 per month as ordered by/the trial court. In that view of the matter, the petitioner must pay the entire arrear amount of maintenance allowance as ordered by this Court vide order dt. 6.1.1992 within two months from today to the opposite party failing which the application for restoration of the case being C. case No. 429/88 of the petitioner shall stand dismissed.