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2007 DIGILAW 988 (BOM)

Ganpat s/o Maroti @ Sandhu Lohakare v. Sanghamitra w/o Ganpat Lohakare

2007-07-19

C.L.PANGARKAR

body2007
JUDGMENT. 1. Rule. Returnable forthwith. 2. Heard Finally with consent of parties. 3. This is a revision against the order passed by the Judge of the Family Court, whereby she rejected an application for setting aside the ex parte order. 4. A few facts may be narrated thus - The present respondents had preferred an application under Section 125 of the Code of Criminal Procedure against the present petitioner. It was the contention of the applicants before the family court that applicant no.1 is the wife while no.2 and 3 therein are the children born to her from the non-applicant therein. The present petitioner did not take part in those proceedings since it is his contention that he was not served with the notice of those proceedings at all. An ex parte order was, therefore, passed and subsequently the Judge of the Family Court delivered an ex parte Judgment on 16th February, 2004 whereby she directed maintenance of Rs.3000/- to be paid to applicant nos.2 and 3. The application as far as applicant no.1 wife is concerned, was rejected. The present petitioner submits that he came to know of such ex parte judgment having been passed against him only when he received a notice of execution of the order. According to him, he came to know of the said ex parte judgment on 8/2/2005. He thereafter moved an application for setting aside the judgment and order. The court after hearing the parties rejected the application. It is against this order of rejection that this revision is preferred. 5. The learned counsel for the petitioner invited my attention to the provisions contained in Section 126 of Code of Criminal Procedure. Proviso to Section 126 of the Code of Criminal Procedure says that the court can 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. The learned counsel for the petitioner submitted that whenever there is such a contingency, the period of limitation should be reckoned from the date of the knowledge to the party. The learned counsel for the petitioner submitted that whenever there is such a contingency, the period of limitation should be reckoned from the date of the knowledge to the party. He relied on the decision of the Supreme Court reported in 2003(6) SCC 186 ( D.Saibaba Vs Bar Council of India and another) wherein Their Lordships of Supreme Court have held that the date of communication or knowledge of the order actual or constructive should be relevant for calculating the limitation. Obviously, herefore, the period of limitation will have to be reckoned from the date of the knowledge. As said earlier, the petitioner claims to have come to know of the order on 8/2/2005. The application for setting aside this ex parte order was filed on 11/3/2005. It is obviously within period of three months. In fact, therefore, there was no need to have filed an application for condonation of delay since it was very much filed within period of three months. It appears that the learned Judge did not take into consideration the statement made by the present respondents in paragraph 8 of the reply wherein they have expressed the desire to contest that application before the Family court on merit. In fact, therefore there was no difficulty in allowing the application for setting aside the ex parte order. The learned Judge seems to have come to wrong conclusion on account of the fact that she ignored this particular statement in the reply filed by the non-applicant. Mr.Pathak, the learned counsel for the respondents, submits that he does not have a quarrel with the proposition that an ex parte order can be set aside within period of three months from the date of knowledge. The application having been filed within period of three months was very much within limitation. In view of this, I find that revision deserves to be allowed. The order passed by the learned judge of the Family Court needs to be set aside. Hence, the following order. The Revision application is allowed. The order passed by the Family court on 29/5/2006 is set aside. The non-applicant in the petition under Section 125 of Code of Criminal Procedure i.e. the present petitioner shall file his written statement within period of two weeks before the Family Court. The Family Court shall proceed to decide the application de novo as early as possible. The order passed by the Family court on 29/5/2006 is set aside. The non-applicant in the petition under Section 125 of Code of Criminal Procedure i.e. the present petitioner shall file his written statement within period of two weeks before the Family Court. The Family Court shall proceed to decide the application de novo as early as possible. Before the petitioner is allowed to file written statement, the Family Court should ensure that he deposits in the court a sum of Rs.30,000/- (Rs. thirty thousand only) which shall be payable to the applicants no.2 and 3 in that petition under Section 125 of Code of Criminal Procedure. The present petitioner shall also pay costs of Rs.1000/- to the present respondents. This amount of Rs.30,000/- deposited shall be adjusted towards the maintenance that may be payable to the applicants no.2 and 3.