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2010 DIGILAW 283 (MP)

Shiv Dayal Soni v. Prabha Soni

2010-03-10

K.S.CHAUHAN

body2010
ORDER 1. This criminal revision under section 37 read with section 401 of the Code of Criminal Procedure has been preferred being aggrieved by the judgment dated 10.8.2007 passed by the First Additional Principal Judge, Family Court. Jahalpur in MJC No. 18/2007, whereby the application filed by applicant under section 126 (2) of CrPC has been rejected. 2. The brief facts of the case that the respondents filed an application under section 125 of CrPC, whereby MJC No. 467/01 was registered in the Court of JMFC. Jahalpur for awarding the maintenance. Notice was issued against the applicant but he did not appear in the Court hence proceeded ex parte. The statement of Smt. Prabha Soni (AW1) was recorded. The application was decided 25.1.2001, whereby the application was allowed and the applicant was directed to pay the maintenance allowance at the rate of Rs. 2,000/- per month to respondent No.1, Smt. Prabha Soni and Rs. 1,000/- each per month to the respondent Nos. 2 and 3. The applicant filed an application under section 126 (2) of CrPC for setting aside the ex parte proceedings. MJC No. 18/07 was registered. The notice was issued to the respondents. They entered their appearance and filed the reply denying the averments made by the applicant. But subsequently she remained absent and proceeded ex-parte. Applicant Shiv Dayal Soni examined himself. After hearing the arguments. First Additional Sessions Judge, Family Court, Jabalpur passed order on 10.8.2007 and rejected the application under section 126 (2) of CrPC filed by the applicant. Being aggrieved by that order the instant revision has been preferred. 3. Shri A. K. Soni. learned counsel for the applicant mainly submitted that the notice was not sent at the correct address. The applicant never refused to take the notice therefore, proceedings ex parte is illegal, which deserves to be set aside. The Court below has committed an illegality in rejecting the application under section 126 (2) of CrPC. 4. On the contrary, Shri Arun Kakonia, learned counsel for the respondents submitted that the applicant will fully avoided the service of notice, therefore he was rightly proceeded ex parte. The Court below has rightly rejected his application under section 126 (2) of CrPC. 5. The main point for consideration in this revision is that whether the Court below has committed any illegality in rejecting the application under section 126 (2) of CrPC filed by the applicant. The Court below has rightly rejected his application under section 126 (2) of CrPC. 5. The main point for consideration in this revision is that whether the Court below has committed any illegality in rejecting the application under section 126 (2) of CrPC filed by the applicant. 6. On perusal of the record. it reveals that the notice against the applicant in MJC No. 467/01 was sent by registered post A/D. The Postman tried from 247-2001 upto 31-7-2001 and returned the envelope with the remark of refusal, thus there is nothing to disbelieve this endorsement. It is established principle of law that refusal amounts to acceptance, therefore the Court below has rightly proceeded ex parte against the applicant in MJC No. 467/01 and decided the matter. 7. The applicant was proceeded ex parte on 9.8.2000 and order passed on 25.1.2001. He filed an application under section 126 (2) of CrPC on 22.9.2001. Thus, this application was filed after near about 8 months. According to the provisions of section 126 of CrPC the ex parte order may be set aside for good cause shown if the application moved within three months from the date of order. Thus, the application is not filed within the prescribed period. The period is to be counted from the date of order and not from the knowledge of the order. Thus the application was tiled beyond the period of limitation. On perusal of the record. it reveals that the Court below summoned the concerned Postman Shamhu Dayal Nema and he appeared in the Court on 12.6.2007. but nobody appeared on behalf of the applicant to examine him hence there is no reason to disbelieve on the endorsement made by Post man on that envelope. Since he has willfully avoided the service of summon therefore rightly proceeded ex parte and the Court below has committed no illegality in rejecting the application under section 126 (2) of CrPC. This revision is merit less deserves to he dismissed. 8. Consequently this revision fails and is dismissed accordingly.