Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 884 (JHR)

Dhirendra Lal Agrawal v. State of Jharkhand

2020-09-11

SHREE CHANDRASHEKHAR

body2020
JUDGMENT : Shree Chandrashekhar, J. The petitioner has challenged the order dated 21.09.2014 passed in Misc. Case No. 8 of 2013 and the order dated 11.05.2016 by which the application seeking recall of ex-parte order dated 21.09.2014 has been dismissed. 2. The facts of this case are confined in a narrow compass. By an order dated 23.06.1981 passed in Maintenance Case No. 35 of 1981, the wife of the petitioner was granted maintenance of Rs. 100/- per month and the minor daughter Rs. 50/- per month. An application under section 127 of the Code of Criminal Procedure was filed in the year, 2013 for enhancement of the monthly maintenance allowance to Rs. 3,000/- per month. On this application, notice was issued to the petitioner and upon service of summons on the petitioner's son the proceeding in Misc. Case No. 8 of 2013 was ordered ex-parte against the petitioner. In the meantime, a distress wan-ant was issued against the petitioner and thereafter he filed two applications one for stay of distress warrant and the other seeking recall of ex-parte order dated 21.09.2014. Both the applications have been dismissed by a common order dated 11.05.2016. 3. Mr. Mayank Mohit Sinha, the learned counsel for the petitioner referring to the judgments in Emkamma Bai v. Ravikumar reported in 1991 Supreme(Mad) 700, Tarini Charan Das v. On the Death of Rajani Kanta Choudhury, His Heirs And Legal Representatives Smti Minoti Choudhury @ Niyati Choudhury reported in 1990 2 GauLJ 457 , Om Prakash v. Brij Nath Sharma” reported in 1980 0 Supreme(Del) 165 and Abbas represented by His Power of Attorney Holder S. Abdulla v. Moideen Kunhi reported in 2014 0 Supreme(Ker) 465 contends that service of summons upon son of the petitioner is not valid service upon the petitioner and therefore the order dated 11.05.2016 by which the application seeking recall of ex-parte order dated 21.09.2014 has been dismissed is unsustainable in law and therefore after setting-aside the order under challenge the petitioner be offered an opportunity to contest Misc. Case No. 8 of 2013 on merits. 4. Section 126 of the Code of Criminal Procedure lays down the procedure for the proceedings under section 125 of the Code of Criminal Procedure and in my opinion the same procedure shall have to be adopted in an application under section 127 of the Code of Criminal Procedure. Case No. 8 of 2013 on merits. 4. Section 126 of the Code of Criminal Procedure lays down the procedure for the proceedings under section 125 of the Code of Criminal Procedure and in my opinion the same procedure shall have to be adopted in an application under section 127 of the Code of Criminal Procedure. Sub-section 2 of section 126 of the Code of Criminal Procedure provides that all evidence in a proceeding under section 125 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. In the proceedings of Misc. Case No. 8 of 2013 the petitioner did not appear and he has taken a stand that summons was not served upon him. The proviso to sub-section 2 to section 126 of the Code of Criminal Procedure provides 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. It further provides that any order so made may be set-aside for good cause shown on an application made within three months from the date thereof, of course, subject to such terms including the terms as to payment of costs to the opposite party as the Magistrate may think just and proper. 5. A person who after service of summons does not take part in the proceedings without any just cause can be said to be willfully neglecting to attend the Court. 6. In the present case the petitioner has set-up a plea that service upon his son is not a valid service upon him in the eyes of law and therefore it cannot be construed that he was willfully neglecting to attend the Court. 7. Order V Rule 12 CPC prescribes that whenever it is practicable service shall be made on the defendant in person unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. 7. Order V Rule 12 CPC prescribes that whenever it is practicable service shall be made on the defendant in person unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. The learned counsel for the petitioner submits that it is an admitted position that the petitioner has not appointed an agent and therefore unless summons is served upon him personally it would not be a valid service of summons upon him. Rule 15 which was amended by the Code of Civil Procedure (Amendment) Act, 1976 provides that where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. It is the case of the petitioner that summons was served upon his son on 05.07.2014 but on his own presence or absence from home on 05.07.2014 the petitioner is completely silent. He has taken a plea that he was sent to judicial custody on 10.06.2016 whereas summons was served upon his son on 05.07.2014. A vague plea or a plea just to wriggle out from a situation covered by Rule 15 under Order V of the Code of Civil Procedure cannot be countenanced in law. A human mind is most unpredictable and behavioral pattern of different persons may vary in similar situation. There may be many reasons for which a person may avoid service of summons upon him though he remains at home. If one refuses service of summons the law takes care of the situation but if inspite of presence of a person at home the process server is told by any adult member of his family that he is not at home and there is no reasonable prospect of his returning home in near future, the process server is not under a duty to conduct further enquiries and service of summons upon the adult member of the family would be valid service under Rule 15. The law on the subject is very clear. The law on the subject is very clear. Rule 15 lays down in no uncertain terms that service of summons upon an adult member of the family, whether male or female, is a valid service subject to the requirements laid down thereunder. On the circumstances specified in Rule 15 viz. (i) the defendant was absent from his residence at the time when the service of summons was sought to be affected on him at his residence, and (ii) there was no likelihood of his being found at his residence within a reasonable time, an endorsement of the process server duly affirmed by witnesses of the locality would suffice. It would be an entirely different issue that endorsement of the process server was improper or would be deemed invalid. At the initial stage, nothing more is required and it would be for the defendant to lead evidence to the contrary in a proceeding under Order IX Rule 13 CPC. Except under very exceptional circumstances where without any strenuous exercise invalidity is apparent on the face of record any objection to validity of the process server's report is a matter for trial. In the present case there is no objection at all on the above grounds and nothing has been brought on record to show that the petitioner was present or absence from house when summons was served upon his son. The petitioner has failed to demonstrate a prima-facie case that the conditions under Order V Rule 15 of the Code of Civil Procedure were not satisfied. He has failed to comply with the order of maintenance and therefore a distress warrant was issued against him and he was brought before the Court, before an application under section 127 Cr.PC was tiled. In the proceedings of Misc. Case No. 8 of 2013 a distress warrant was again issued against him. 8. The circumstances indicate that he was evading arrest and that was the reason summons has been served upon his son. Even after service of summons on several dates he did not appear in the proceeding of Misc. Case No. 8 of 2013. 9. In these facts, service of summons upon his son must be accepted valid service of summons upon the petitioner. 10. Even after service of summons on several dates he did not appear in the proceeding of Misc. Case No. 8 of 2013. 9. In these facts, service of summons upon his son must be accepted valid service of summons upon the petitioner. 10. On quantum of maintenance, in the application under section 127 of the Code of Criminal Procedure which was filed more than 30 years after the order of maintenance of Rs. 150/- was passed the wife of the petitioner has claimed maintenance of Rs. 3,000/- per month. 11. In Vimala (K) v. Veeraswamy (K) reported in (1991) 2 SCC 375 , the Hon'ble Supreme Court has observed that section 125 of the Code of Criminal Procedure is meant to achieve a social purpose; “the object is to prevent vagrancy and destitution”. 12. It would not require any interpretation of law or an strenuous exercise to say that in the last 30 years the cost of living has multiplied many folds. The petitioner has not shown that he is nowhere employed and he has no sufficient income to maintain his wife. On the contrary, his wife has pleaded that his income is about Rs. 35,000/- per month. 13. In Shamima Farooqui v. Shahid Khan reported in (2015) 5 SCC 705 , the Hon'ble Supreme Court has observed that as long as the wife is entitled to maintenance under section 125 of the Code of Criminal Procedure it has to be so adequate that she can live with dignity and in a similar manner as she would have lived in her matrimonial home. 14. The orders dated 21.09.2014 and 11.05.2016 which are under challenge in the present proceeding are well reasoned orders. The learned Family Court Judge has considered every aspect of the matter and I find no infirmity in his approach while proceeding ex-parte in Misc. Case No. 8 of 2013. 15. In Deb Narayan Haider v. Anushree Haider (Smt.) reported in (2003) 11 SCC 303 , the Hon'ble Supreme Court has observed that the Appellate Court or the Revisional Court would not interfere with the findings recorded by the Court below unless it is shown that such findings are perverse or the Court has acted with material irregularity. 15. In Deb Narayan Haider v. Anushree Haider (Smt.) reported in (2003) 11 SCC 303 , the Hon'ble Supreme Court has observed that the Appellate Court or the Revisional Court would not interfere with the findings recorded by the Court below unless it is shown that such findings are perverse or the Court has acted with material irregularity. In paragraph 11 of the reported judgment the Hon'ble Supreme Court has observed as under: 11.“………It is well settled that the appellate or revisional court while setting aside the findings recorded by the court below must notice those findings, and if the appellate or revisional court comes to the conclusion that the findings recorded by the trial court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the court below. This is particularly so when findings recorded by the trial court are sought to be set aside by an appellate or revisional court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the trial court, the party aggrieved is entitled to ask for setting aside of such a judgment…..” 16. The above being the factual scenario and the position in law, as it stands today, 1 am not inclined to interfere in this matter and, accordingly, Criminal Revision No. 788 of 2016 is dismissed.