Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 20 (CAL)

SOUMITRA JANA v. MALATI JANA

2005-01-14

PRAVENDU NARAYAN SINHA

body2005
Pravendu Narayan Sinha ( 1 ) THIS revisional application under section 401 read with section 462 of the code of Criminal Procedure (hereinafter referred to as Code) has been preferred by the husband/ petitioner assailing the order dated 28. 7. 2004 passed by the learned SDJM, Contai in Misc. Case No. 285/2000 under section 126 (2) of the code dismissing the said application filed by the present petitioner. ( 2 ) LEARNED Advocate for the petitioner contended that the opposite party claiming herself as wife filed an application under section 125 of the Code against this petitioner in 1993 and no notice was served upon him. The petitioner is residing at Calcutta for more than 10 years back. The opposite party/wife obtained an ex parte order under section 125 of the Code and he came to know about the ex parte order later on sometime in 2000. Thereafter on 19. 9. 2000 he filed an application under section 126 (2) of the Code before the learned magistrate along with an application under section 5 of the Limitation Act for condonation of delay. That application was registered as Misc. Case No. 285/ 2000 under section 126 (2) of the Code. After evidence the learned Magistrate by the impugned order dated 28. 7. 2004 dismissed the application filed by the petitioner observing that the petitioner could not produce any document to establish that the petitioner is residing in Calcutta for the last 10 years. Learned magistrate also observed that notice regarding Misc. Case No. 230/94 in connection with section 125 application was published in a local newspaper and it can be presumed that the husband/petitioner had knowledge about the misc. Case No. 230/1994. He submitted that there is a ration card in the name of the petitioner issued in the year 1987 to show that he is residing at 84, Biren roy Read (W), Calcutta-61. Before the learned Magistrate adjournment prayer was made for filing the ration card but the adjournment prayer was rejected and he could not file the ration card or the copy of the ration card before the learned Magistrate. He was denied the reasonable opportunity of placing his document before the learned Magistrate and accordingly, learned Magistrate may be directed to rehear the matter and permission to file the ration card before the learned Magistrate be granted. He was denied the reasonable opportunity of placing his document before the learned Magistrate and accordingly, learned Magistrate may be directed to rehear the matter and permission to file the ration card before the learned Magistrate be granted. He also contended that the husband in T. S. No. 219/93 has obtained a decree against defendant who is present opposite party to the effect that she is not his wife and accordingly she cannot claim any maintenance. ( 3 ) MRS. Goswami, learned Advocate for the opposite party/wife contended that in the voters list as well as in the ration card she has been described as the wife of the present petitioner. The opposite party filed an application under section 125 of the Code on 16. 7. 1993 and obtained an ex parte order of maintenance at the rate of Rs. 500/- in all for herself and for her minor son. The husband/petitioner was fully aware of the Misc. Case No. 230/ 94 under section 125 of the Code. In the title suit filed by the husband, the wife appeared and filed written statement and therein she categorically mentioned about filing of the misc. case under section 125 of the Code. Accordingly, the husband/petitioner had the knowledge of the Misc. Case No. 230/94 in the year 1995. The learned magistrate after considering all aspects rightly observed that the petitioner had knowledge of Misc. Case No. 230/94 and he failed to make out sufficient cause for setting aside the ex parte order. The order of the learned Magistrate was correct, legal and proper and it requires no interference. ( 4 ) AFTER going through the materials on record and the revisional application and considering the submissions made by the learned Advocates of the parties, i find that it is admitted that the opposite party as petitioner filed an application under section 125 of the Code against this petitioner claiming maintenance for herself and her minor son on 16. 7. 93. The petitioner did not appear in the said misc. case and accordingly the learned Magistrate allowed the said application ex parte on 2. 6. 94 and granted maintenance at the rate of Rs. 300/- per month for herself and at the rate of Rs. 200/- per month for her minor son. Thereafter on 19. 9. 2000. 7. 93. The petitioner did not appear in the said misc. case and accordingly the learned Magistrate allowed the said application ex parte on 2. 6. 94 and granted maintenance at the rate of Rs. 300/- per month for herself and at the rate of Rs. 200/- per month for her minor son. Thereafter on 19. 9. 2000. the petitioner filed an application under section 126 (2) of the code for setting aside the ex parte order and it was registered as Misc. Case no. 285/2000. It is evident that the learned Magistrate by the impugned order dated 28. 7. 2004 dismissed the said application. ( 5 ) AT this stage this Court could not enter into the discussion regarding the decree passed by the learned Civil Judge (Jr. Division), 1st Court, Contai in t. S. No. 219/93. A xerox copy of the decree has been shown to me by the learned advocate for the husband/petitioner along with a xerox copy of information slip issued by the concerned Civil Court at Contai. These two documents are confusing as in the information slip number of the title suit has been mentioned as T. S. No. 209/93 whereas xerox copy of the judgement shown to me bears suit No. T. S. No. 219/93. The information slip and the judgement carry two different numbers of title suit and accordingly it cannot be considered. Moreover, this is not the proper forum for consideration of it as the said documents were not produced before learned Magistrate. If the husband has obtained any decree for declaration that opposite party is not his wife, he is at liberty to file proper application before the learned Magistrate at Contai by producing relevant documents for appropriate action. ( 6 ) NOW, coming to the merit of the order passed by the learned Magistrate, i find that the learned Magistrate came to the decision that no scrap of document was produced before him to show that the petitioner is residing at Calcutta for the last 10 years. The learned Magistrate also observed that notice of Misc. Case No. 230/94 was published in a local newspaper by which the husband was directed to appear before the said Court but he did not appear. It is the contention of the petitioner that before the learned Magistrate he could not produce papers to establish that he was residing at Calcutta. The learned Magistrate also observed that notice of Misc. Case No. 230/94 was published in a local newspaper by which the husband was directed to appear before the said Court but he did not appear. It is the contention of the petitioner that before the learned Magistrate he could not produce papers to establish that he was residing at Calcutta. After the order of the learned magistrate he has collected the copy of the ration card which he has filed in this Court and that document could not be produced before the learned magistrate and the said document could not be procured by him in spite of his due diligence and best efforts. A copy of the ration card has been produced before this Court from which it appears that the petitioner resides in Behala area of Calcutta address mentioned in his ration card is 84, Biren Roy Road (W), Calcutta-61. If a man resides at Calcutta having ration card, he is not expected to know the matters advertised or notice published in local newspapers of Contai. The argument of the learned Advocate for the opposite party that the petitioner had the knowledge of Misc. Case No. 230/94 from the date of filing of the written statement in T. S. No. 209/93 is not acceptable. The application under section 126 (2) of the Code was filed along with an application under section 5 of the Limitation Act. Registration of that application impliedly indicates that the learned Magistrate was satisfied about the causes of delay and after allowing the application under section 5 of the Limitation Act condoning the delay he took up the matter for hearing of the application under section 126 (2) of the Code. Absence of any indication regarding condonation of delay or about the application of section 5 of the Limitation Act prayer in the impugned order clearly indicates that the learned Magistrate considered the application under section 5 of the Limitation Act. When the learned Magistrate considered the matter of delay to file the application, the ground that the petitioner had knowledge about the Misc. Case No. 230/94 from the date of filing of T. S. No. 209/93 becomes irrelevant for the purpose of the present matter. ( 7 ) IT is always desirable that Court should encourage hearing of the matter on merit and should not be too technical. Case No. 230/94 from the date of filing of T. S. No. 209/93 becomes irrelevant for the purpose of the present matter. ( 7 ) IT is always desirable that Court should encourage hearing of the matter on merit and should not be too technical. When the husband had approached the concerned Magistrate though late, the learned Magistrate should have considered those grounds and should have allowed the husband to contest the main application under section 125 of the Code. Besides that, he has now another ground as he has at least ration card in his favour to show that he is residing at Calcutta and for this reasons, I am of the opinion that the learned Magistrate should rehear the application under section 126 (2) of the Code and the petitioner should be given liberty to file the ration card or its copy before the learned magistrate. The learned Magistrate is also given liberty to ask the parties to adduce further evidence, if any, and shall give an opportunity to the petitioner for his reexamination to produce relevant papers and documents before him. The learned Magistrate shall dispose of the application under section 126 (2) of the Code afresh within two months from the date of the communication of this order. ( 8 ) I make it clear here that I have not entered into the merit of the application under section 126 (2) of the Code and the learned Magistrate after considering the evidence already on record and further evidence that may be adduced by the parties will arrive at his own decision without being influenced in any way by the observations made by this Court which have been made only for the purpose of disposal of this revisional application. ( 9 ) ACCORDINGLY, this revisional application is disposed of in the light of the observations made above. ( 10 ) SEND a copy of this order to the learned S. D. J. M. , Contai, for information and necessary action. Revisional application disposed of.