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2009 DIGILAW 771 (GAU)

Parimal Debnath v. State of Assam

2009-11-05

B.D.AGARWAL

body2009
JUDGMENT B.D. Agarwal, J. 1. This revision application is being disposed of at the admission stage with the consent of the learned Counsel for both the sides. 2. I have heard Sri Inam Uddin, learned Counsel for the Petitioner. Also heard Sri K. Munir, learned Additional Public Prosecutor for the Respondent No. 2, i.e. the State of Assam and Smt. S. Roy, learned Counsel for the opposite party No. 2. 3. The Petitioner is the second party in MR. Case No. 192 of 2006 in the Court of learned SDJM, Shankardevnagar, Hojai. The said Miscellaneous Case under Section 125 Code of Criminal Procedure was decided ex parte on 31.3.2007 awarding a sum of Rs. 5,000/- per month as maintenance allowance in favour of the wife. The said ex parte order was sought to be reviewed by the husband by filing Petition No. 5140 on 4.10.2008 under Section 126 Code of Criminal Procedure. The first party objected the review application basically on the ground that the second party had due knowledge of the maintenance proceedings and also on the ground that the review application was barred by limitation. Upon hearing both the sides, the application of the second party to vacate the ex parte order was dismissed on 21.7.2009. This order is under challenge in this revision application. 4. Sri Inam Uddin, learned Counsel for the Petitioner submitted that at the relevant time the Petitioner/second party was busy in the treatment of this mother at Madras. Besides this, his father is also an ailing person and suffering from paralysis and simultaneously, the Petitioner was also busy in the treatment of his father. According to the Petitioner, as soon the Petitioner came to know about the maintenance order he appeared in the Court and prayed for allowing him to contest the case. 5. The Miscellaneous Case was ordered to proceed ex parte on 31.3.2007 on the basis of the report of the Process Server that the mother of the second party refused to accept the notice. A copy of the said Process Server has been annexed with the revision application under Annexure-2. 6. The procedure as to how summons and other process can be executed in criminal cases has been laid down under Chapter 11 of the Criminal Rules and Orders (Vol.1). A copy of the said Process Server has been annexed with the revision application under Annexure-2. 6. The procedure as to how summons and other process can be executed in criminal cases has been laid down under Chapter 11 of the Criminal Rules and Orders (Vol.1). Under Rule 5 of the said Chapter, it has been laid down that if a person, to whom, a summon has to be served for his appearance, refuses to accept the summon shall be affixed on the door of the residence of the person/accused in the presence of two witnesses and the names of those witnesses should be mentioned in the report. Under Rule 6, in absence of the addressee such process can be served on an adult member of the family. Under Rule 7, has been stated that if the addressee or any other member is not found at the address a copy of the process shall be affixed to the door of his residence in the presence of two witnesses whose names and addresses shall be recorded in the report. 7. In the case before me, apparently, the Petitioner/second party had a permanent residence and family members were available at home. However, the Process Server has reported that the mother of the second party refused to accept the notice. However, the report does not indicate that the Process Server had visited the house of the second in presence of any witness as required under the law. Be that as it may, the aforesaid provisions of Criminal Rules and Orders as well as the relevant provisions of Code of Criminal Procedure, 1973, does not admit the acceptance of notice by any female member as sufficient notice. In this way, there was patent illegality in proceeding ex parte against the second party. 8. The second ground to refuse the application for vacating the ex parte order is that it was time barred. It is the settled position of law that the statutory period for filing any application runs from the date of knowledge. In the present case, there was no service of notice upon the second party and as such, the learned SDJM ought to have condoned the delay since there was no conclusive evidence before him that the second party defaulted in contesting the case despite statutory notice. 9. In the present case, there was no service of notice upon the second party and as such, the learned SDJM ought to have condoned the delay since there was no conclusive evidence before him that the second party defaulted in contesting the case despite statutory notice. 9. For the reasons set forth hereinabove, I am persuaded to interfere with the impugned order and consequently, the impugned order dated 21.7.2009 is hereby set aside. The case is remanded to the Court of the learned SDJM, Shankardevnagar, Hojai and the learned SDJM is directed to give opportunity to the second party to contest the case by filling written statements. On filing of the written statements, the learned SDJM shall give opportunity to both the parties to adduce evidence/additional evidence and decide the case afresh. For this purpose, both the parties are directed to appear in the trial Court on 1.12.2009. 10. Since the maintenance application was filed in the year 2006 and decided in the month of March 2007 I feel it expedient to grant interim maintenance allowance to the first party. Having regard to the fact that the second party/Petitioner is an LIC agent atleast a sum of Rs. 2,000/- can be granted as interim maintenance allowance. This amount shall be payable from the date of the maintenance order i.e. 31.03.2007. Needless to mention that this interim order shall merge in the final order in usual course. 11. The Registry is directed to transmit a copy of this order to the trial Court immediately. 12. In the result, the revision application stands allowed. Petition allowed.