S BHUPINDER SINGH MAKKAR Vs. NARINDER KAUR

JUDGEMENT

(1.) This petition has been brought under Section 401 read with Section 482 of the Code of Criminal Procedure (for short 'the Code') seeking quashment of the order dated January 25, 1985, passed by Ms. Deepa Sharma, Metropolitan Magistrate, New Delhi, by which she allowed the petition moved by respondent No. 1 under Section 125 of the Code and awarded maintenance to respondent No. 1 and respondent No. 2. This was an ex-parte order granting maintenance.

(2.) Counsel for the petitioner has challenged the impugned order pleading that no proper service of the notice issued under Section 125 read with Section 126 of the Code had been effected on the petitioner and the mode of service adopted by the learned Magistrate by issuance of registered notices and ultimately publication of a notice in a newspaper was not in consonance with the procedure for effecting service envisaged in the provisions of the Code and thus, on the face of it the ex-parte order made against the petitioner was illegal. He had also urged that the newspaper in which the publication had been effected was an unknown newspaper and had no circulation in Ludhiana where the petitioner is admittedly residing and even no copy of the newspaper had been set at the address of the petitioner as is required by law. He has further urged that the petitioner had come to know about the ex-parte order only in the last week of May 1988 through his brother-in-law when non-bailable warrants of arrest of the petitioner and warrants of attachment of his moveables were sought to be executed and thus, the petitioner could not move the learned Magistrate under Section 126 of the Code for setting aside of the exparte order inasmuch as limitation for filing such an application had already expired.

(3.) The learned counsel for respondents 1 and 2 has, on the other hand, contended that no resort to inherent powers of this court can be made till the petitioner had exhausted his legal remedies available under Section 126 and under Section 401 of the Code. He has also urged that even revisional powers of the Court cannot be exercised till the petitioner had taken benefit of remedy available under Section 126 of the Code itself. On merits, the learned counsel for respondents 1 and 2 has contended that despite repeated efforts made by the learned Magistrate to effect service of notice on the petitioner in accordance with the provisions of the Code the service could not be effected as the petitioner at one time refused to accept the notice and on the other occasion had avoided to accept the notice and thus, as an extra caution the learned Magistrate had sent repeated registered notices to the petitioner which the petitioner avoided to receive and ultimately service by publication was also effected and thus, in the present case the learned Magistrate has rightly proceeded ex-parte against the petitioner who had deliberately avoided to appear in the proceedings.