SHRIMTI PREMA JAIN Vs. SUDHIR KUMAR JAIN

JUDGEMENT

(1.) Prema Jain filed a petition under section 125 of the Code of Criminal Procedure, 1973, for the award of maintenance allowance against her husband Sudhir Kumar Jain on 29-1-1976. The said petition was dismissed by the Metropolitan Magistrate concerned because of her non-appearance on 16-7-1976. Her counsel preferred an application for the restoration of the said petition on 19-7-1976 but it was dismissed on 20-10-1976 for the technical reason it had been signed by her Advocate and not by Prema Jain herself. She filed, therefore, another application on 27-10-1976 for the restoration of the original petition and it was granted by Shri H. P. Sharma, Metropolitan Magistrate on 27-1-1977. The learned Magistrate observed that there was no law to prohibit filing of restoration application; there was no intentional lapse on the part of the applicant and she could not be penalised for a minor lapse of her counsel and that too when the Court was not functioning in a regular form because of quick transfers and its office was working at two different places giving rise to confusion. He ordered payment by her of Rs. 50 as penalty and the amount was readinly accepted by the counsel for the other side.

(2.) . The respondent moved the Court of Session, however, for a revision of the order of the learned Metropolitan Magistrate dated 27-1-1977 on the ground he had no power inherent or otherwise to review his own order dismissing the petition for default. His plea prevailed with Shri V. B. Bansal, Additional Sessions Judge, and holding that the Magistrate's order was without jurisdiction and beyond the scope of the Code of Criminal Procedure he set aside the same. Prema Jain has now approached this Court with a petition to avoid the damage done by the order of the first revisional court.

(3.) . The learned Additional Sessions Judge has observed that the proceedings under section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the 'New Code') were criminal in nature and found support for this view from Shrimati Harbhaja,n Kaur v. Major Sant Singh (A.I.R. 1969 Delhi 298) (1). He has held that the Magistrate was incompetent to recall his order and relied in this behalf on Sankatha Singh and others v. State of Uttar Pradesh (A.I.R. 1962 S.C. 1208) (2) and Babu Ram v. Ramji Lal and others (A.I.R. 1964 Punjab 444) (3).