LAXMANDAS S O VARANDAL Vs. LACHAMIBAI

JUDGEMENT

(1.) * * * *

(2.) Two points arise with regard to and in relation to the service of summons said to have been effected in Criminal Miscellaneous Application No. 8 of 1965. The first is whether the service of summons by registered post to the opponent in any such proceeding under sec. 488 of the Criminal Procedure Code was valid even if it can be taken as so effected and secondly whether the period of limitation begins to run from the date of the order or from the date of knowledge of such order under sec. 488(6) of the Code. Now clause (6) of sec. 488 of the Criminal Procedure Code provides that all evidence under this Chapter shall be taken in the presence of the husband or father as the case may be or when his personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons cases. It is not in dispute that in proceedings under sec. 488 of the Criminal Procedure Code the Court has to follow the procedure laid down in respect of summons cases. The procedure in so far as it relates to processes for appearance is contained in secs. 68 to 71 of Chapter VI-A of the Code. Sec. 68(1) refers to the form of summons and sub-sec. thereof says that it shall be served by a police-officer or subject to such rules as the State Government may prescribe in this behalf by an officer of the Court issuing it or other public servant. Then sec. 69 provides as to how the summons has to be served. Sub-sec. (1) thereof says that the summons shall if practicable be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Under sub-sec. (2) of sec. 69 a receipt has to be passed by the person on whom a summons is so served on the back of the duplicate. Then comes sec. 70 which provides for service of summons when a person summoned cannot be found. In those circumstances the summons may be served by leaving one of the duplicates with some adult male member of his family or in a presidency town with his servant residing with him and the person with whom the summons is so left shall sign a receipt thereof on the back of the other duplicate. Then comes sec. 71 which provides for certain procedure when service cannot be effected as provided before i. e. provided in secs. 69 and 70 of the Code. In those circumstances the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides and thereupon the summons shall be deemed to have been duly served. None of these methods contemplated for service of summons has been adopted in the present case and we find no provision whatever in the Criminal Procedure Code or under any rules framed in that respect that a person can be served in a manner other than what is contemplated under secs. 68 to 71 of the Code of Criminal Procedure viz. by registered post or so. In these circumstances even if any summons was sent by registered post and it had come back as refused by the opponent-husband it cannot be said that he was duly served in accordance with the provisions contained in he Criminal Procedure Code. Any such service cannot be called service in law and it has to be taken as not served for the purpose of service.

(3.) The learned Magistrate as already stated above had proceeded ex parte against Laxmidas in the matter on the basis that the summons was sent to him by registered post and that it had come back duly refused by him. In other words he must have felt that he was willfully avoiding service or willfully neglecting to attend the Court as provided in subsec. (6) of sec. 488 of the Criminal Procedure Code and that way he proceeded to hear the matter ex parte against him. But the learned Sessions Judge has dealt with that part of the matter in an exhaustive manner and that again after looking into the papers of that Criminal Miscellaneous Application No. 8 of 1965 and has come to the conclusion that those papers nowhere show that the notice sent by registered post was received back by the Court. He has then pointed out that there is no affidavit filed by the applicant that the notice was addressed to the proper address of the opponent and that the opponent was residing at that very place at that time though in fact a date was fixed for filing an affidavit in respect thereof. One other circumstance pointed out by the learned Sessions Judge is that the address of the opponent shown in the suit for judicial separation filed in the Court of the Civil Judge Bareily was quite different from the one shown in the Criminal Miscellaneous Application No. 8 of 1965 filed by the wife in the Court of the Judicial Magistrate F. C. Gandhidham. In these circumstances his conclusion was that any such service cannot be said to be a valid service on him in respect of that proceeding and there is no reason why we should not accept that finding as correct which was arrived at on the basis of facts before the Sessions Judge. That way speaking there is no valid service of the proceeding filed by the wife.-Bai Laxmibai against her husband... Laxmandas for maintenance and consequently the order passed in that petition was an order which cannot be one passed against an opponent who was willfully avoiding service or willfully neglecting to attend the Court as contemplated in the proviso to sub-sec. (6) of sec. 488 of the Criminal Procedure Code. The evidence under this chapter has to be taken in the presence of the husband or when his personal attendance is dispensed with in the presence of his pleader and has to be recorded in the manner prescribed in the case of summons cases. But by reason of the proviso if the Magistrate is satisfied that the husband against whom The application for maintenance has been made is willfully avoiding service or willfully neglecting to attend the Court the Magistrate can proceed to hear and determine the case ex parte. Thus it can be called an ex parte order legitimately passed by the Court only when the Court is satisfied that he was willfully avoiding service or willfully neglecting to attend the Court.