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2014 DIGILAW 283 (CHH)

Shobhanath v. Sukhmaniya

2014-07-28

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Invoking revisional jurisdiction of this Court under Section 397/401 of the Code of Criminal Procedure (for short 'the Cr.P.C.'), sole applicant - Shobhnath has filed this revision calling in question the legality, validity and correctness of the order dated 11.04.2007, passed by Family Court, Ambikapur, Distt. Surguja in Misc. Case No. 96/06 rejecting his application filed under proviso to Section 126(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). The core facts required for adjudication of this revision are as under: 1.1 Non-applicant Nos. 1 & 2, being the wife and daughter of applicant-Shobhnath, filed an application under Section 125 of the Code of Criminal Procedure (for short 'the Code') before the Chief Judicial Magistrate, Ambikapur, being registered as Misc. Criminal Case No. 306/2003, in which the learned Magistrate said to have issued summons to the present applicant for his appearance before that Court, but despite service of summons, he failed to appear before that Court, thus, the trial Magistrate proceeded ex parte and on 27.7.2004, passed an order granting monthly maintenance of Rs. 500/- to each of the non-applicants. 1.2 The present applicant on 9.11.2006 filed an application under proviso to Section 126(2) before the Family Court, Ambikapur, Sarguja along with application for condonation of delay in filing the said application stating inter alia that he was not duly served with the notice of application under Section 125 of the Code of Criminal Procedure and he came to know about passing of the impugned order only on 1.10.2006 when the order of maintenance was sought to be executed against him. The said application was opposed by the present non-applicants, by filing reply, stating inter alia that the applicant was duly served with the notice by registered post and he deliberately and willfully avoided appearance before the, court, and as such, the main application under Section 126(2), Cr.P.C. as well as application for condonation of delay in filing the said application deserves to be rejected as no sufficient cause has been shown for delay in filing the application under proviso to sub-section (2) of Section 126 of the Code. 2. 2. The Family Court, by its impugned order rejected the application filed for setting aside ex parte order of maintenance stating that though the summons of the proceedings under Section 125, Cr.P.C. was duly not served to the applicant but the applicant has not shown sufficient cause for delay in filing the application u/s. 126(2), Cr.P.C. and thereby rejected the application under Section 5 of the Limitation Act and consequently the application under proviso to Section 126(2), Cr.P.C. was also rejected. Against this, the instant revision has been filed by the applicant. 3. Mr. Rahul Mishra, learned counsel appearing for the applicant would submit that the Family Court has committed legal error in rejecting the application filed under proviso to Section 126(2), Cr.P.C., after having held that summons of the proceedings under Section 125, Cr.P.C. was not duly served to the applicant. He would further submit that there is uncontroverted evidence available on record to show that he filed application within three months from the date of knowledge of the ex parte order of maintenance and, therefore, the order impugned deserves to be set aside. 4. Per contra, Mr. Rakesh Pandey, learned counsel appearing for the non-applicants would submit that the Family Court is absolutely justified in rejecting the above stated application as the applicant has failed to show sufficient cause for delay in filing the application beyond the statutory period of three months provided in proviso to sub-section (2) of Section 126 of the Cr.P.C. and, thus, the order impugned deserves to be upheld. 5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein and perused the records of court below with utmost circumspection. 6. In order to appreciate the point raised, it would be profitable to notice proviso to Section 126(2) of the Cr.P.C., which reads as under:- "126. 5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein and perused the records of court below with utmost circumspection. 6. In order to appreciate the point raised, it would be profitable to notice proviso to Section 126(2) of the Cr.P.C., which reads as under:- "126. Procedure.--(1) Proceedings under Section 125 may be taken against any person in any district- xxx xxx xxx (2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may 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 subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper." 7. From a careful and close perusal of the proviso to sub-section (2) of Section 126 of the Cr.P.C. would show that the ex parte order can be set aside on showing good cause by the applicant, if such application is made within three months from the date of the order. 8. What falls for consideration in this revision is whether limitation of three months for setting aside the order of maintenance will begin from the date of knowledge of the order to the aggrieved party or from the date of ex parte order of maintenance. 9. Indisputably, proviso to sub-section (2) of Section 126, Cr.P.C. of the Code provides that ex parte order can be set aside on showing good cause, if such application is made within three months from the date of order. 10. 9. Indisputably, proviso to sub-section (2) of Section 126, Cr.P.C. of the Code provides that ex parte order can be set aside on showing good cause, if such application is made within three months from the date of order. 10. In Raja Harish Chandra v. Deputy Land Acquisition Officer, AIR 1961 SC 1500 their Lordships of Supreme Court has held that if there was no knowledge on the part of the affected party about the relevant proceedings and the ultimate order passed ex parte therein, the period of limitation is not to run from the date of the order but from the date of the knowledge. Para 11 of the report states as under:- "11. These decisions show that where the rights of a person are affected by any order and limitation is prescribed for enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned." 11. The aforesaid principle of law has been reiterated and followed by their Lordship of the Supreme Court in Parsottambhai Maganbhai Patel and others v. State of Gujarat, through Dy. Collector, Modasa and another, (2005) 7 SCC 431 : ( AIR 2005 SC 3464 ) while considering latter part of Section 18(2)(b) of Land Acquisition Act, it has been held that limitation has to be computed having regard to the date on which claimants got knowledge of declaration of award either actual or constructive. 12. Thus, following the principle of law laid down by their Lordship of the Supreme Court in the aforesaid case, it is held that limitation for setting aside the ex parte order of maintenance under proviso to sub-section (2) of Section 126 of the Cr.P.C. will begin from the date of knowledge of the order to the aggrieved party and not from the date of passing of the ex parte order of maintenance, as any other interpretation will defeat the intention of legislature and would not be expedient in the interests of justice. If the ex parte order or maintenance is vitiated because of absence of a legal service, the ultimate order passed is not a legal and proper and it is for the aggrieved party/petitioner to prove that he came to know about the order only on the date stated in the application for setting aside the ex parte order of maintenance and not earlier. 13. After having held that three months will be reckoned from the date of knowledge of the ex parte order of maintenance, coming back to the facts of the case. According to the applicant, he came to know about the ex parte order of maintenance on 01.10.2006, which has duly been established on record, the non-applicants has not led any evidence to demonstrate that the applicant was aware of the impugned order prior to 1.10.2006 and he filed an application for setting aside an ex part order of maintenance on 9.11.2006, within three months from the date of knowledge of the impugned order. 14. The Family Court has clearly recorded a finding that the applicant was not duly served with the summons of the proceeding under Section 125of the Cr.P.C. but rejected the application under Section 5 of the Indian Limitation Act for condoning the delay on the ground that in the recovery proceeding, M.J.C. No. 253/2005 filed by the respondent/wife on 15.10.2014, he was duly served as he has refused to accept notice sent by the said Court in relation to the recovery proceedings. In the considered opinion of this Court, the order of Family Court rejecting the application under proviso to Section 126(2) of the Code and refusing to condone the delay in filing the application under proviso to Section 126(2) of the Cr.P.C. deserves to be set aside for the two reasons firstly that the non-applicants had not led any evidence by filing and producing the record of the M.J.C. No. 253/2005 in the instant proceedings of setting aside the ex parte order i.e. M.J.C. No. 96/2006 and, therefore, the Family Court could not have called for that record suo motu and could have taken the evidence/record of that proceeding and, consequently, could not have rejected the application under Section 5 of the Limitation Act and; Secondly since the Family Court has already held that the applicant was not duly served with the summons of proceedings under Section 125, Cr.P.C., therefore, limitation of three months, for setting aside the ex parte order of maintenance begins from the date of knowledge of the order to the aggrieved party i.e. on 1.10.2006 and applicant filed application under proviso to Section 126(2) of the Code on 9.11.2006, within three months from the date of knowledge of ex parte order of maintenance as provided under proviso to Section 126(2) of the Cr.P.C., thus, in the considered opinion of this Court, the Family Court is absolutely unjustified in holding that the applicant has not shown sufficient cause for condonation of delay in filing the application and thereby committed illegality in rejecting the application for setting aside ex parte order of maintenance. 15. Concludingly, the criminal revision is allowed. Impugned order dated 11.04.2007 is set aside. It is held that the application filed for setting aside the ex parte order of maintenance on 9.11.2006 was within the period of limitation, that is three months from the date of knowledge of that order, consequently, the Family Court is absolutely unjustified in rejecting the application for setting aside ex parte order of maintenance, therefore, ex parte order of maintenance dated 27.07.2007 is set aside and Misc. Criminal Case No. 306/2003 is restored to its original number for hearing and disposal in accordance with law on merits. The said Court is directed to decide the said proceedings within three months from the date of receipt of copy of this order. 16. Criminal Case No. 306/2003 is restored to its original number for hearing and disposal in accordance with law on merits. The said Court is directed to decide the said proceedings within three months from the date of receipt of copy of this order. 16. Needless to mention that the Family Court, while deciding the application for maintenance, will keep in mind that the said application was filed before the Family Court on 22.9.2003 claiming maintenance. No order as to cost(s). Appeal allowed.