PARTHASARATHY Vs. BANUMATHY

JUDGEMENT

(1.) The petitioner against whom an ex parte order of maintenance was passed by the Chief Metropolitan Magistrate, Egmore, Madras in M.C. No. 25 of 1984 filed by the respondent herein under section 125, Criminal Procedure Code, invokes the inherent powers of this Court, to set aside the above ex parte order, on the ground that summon had been served on him, in violation of Section 62(1), Criminal Procedure Code and that, therefore, the entire proceedings are illegal.

(2.) Facts necessary for the disposal of the petition are briefly as follows: - On 20.2.1984 the respondent filed an application under section 125, Criminal Procedure Code claiming monthly maintenance from the respondent, on the allegation that being his legally wedded wife and having no means to maintain herself and the petitioner, having means, had failed and neglected to maintain her. Learned Magistrate took the case on file as M.C. No. 25 of 1984 and ordered issuance of notice to the respondent by Registered Post with acknowledgement due, fixing next date of hearing as 17.4.1984. The petitioner received the above notice by Registered Post on 24.3 84 and acknowledged the same. On 17.4.1984 the petitioner did not attend Court and the learned Magistrate, on being satisfied from the acknowledgement received from the petitioner, that notice of the proceedings had been received by the petitioner, set him ex parte and passed the impugned order, awarding maintenance at Rs. 300 per month. Since the petitioner did not pay maintenance, the respondent took out proceedings to execute the order and distress warrant was initially issued. The same remained unexecuted, and finally on 26. 12.1985 the learned Magistrate issued a non- bailable warrant for the arrest of the petitioner. Thereafter, on 23.1.1986 the petitioner had used this petition, invoking the inherent powers of this Court, to have the ex parte order passed on 17.4.1984 set aside.

(3.) It is alleged on behalf of the petitioner in the affidavit that when the petitioner received the notice by Registered Post on 24th March, 1984, he was laid up with jaundice and typhoid and, that therefore, he could not attend Court. It is also contended that service of summons on the petitioner by Registered Post was not legal, and that, therefore, the petitioner was not legally aware of the proceedings. The learned Magistrate had no jurisdiction to set him ex parte and the procedure being irregular, the ex parte order of maintenance could not be legally sustained. Thiru V. Krishnamurthy, learned Counsel for the petitioner, while elaborating the above legal contentions, stated that section 62(1), Criminal Procedure Code, which lays down the procedure for service of summons under the Code, requires that summons should be served by a Police Officer or subject to such rules as the State Government may make in this behalf, by an Officer of the Court issuing it or other public servant. Learned Counsel, therefore, contended that in the instant case, summons had not been served on the petitioner by any Police Officer and as such, any summons sent by Registered Post, is contrary to the express provisions of section 62(1), Criminal Procedure Code, and, therefore, in law the petitioner could not be taken to have been really served with summons and that therefore should not have been set ex parte under the proviso to section 125 (2), Criminal Procedure Code. In support of his contention, learned Counsel placed reliance upon a decision of this Court in Thulasingam v. Padmavathiammal. Per contra, Miss R. Vaigai, learned Counsel for the respondent, .contended that the nature of the proceedings under section 125, Criminal Procedure Code, was essentially different from a criminal trial, the former being more of a civil nature and strict compliance of section 62(1), Criminal Procedure Code, was not called for. In the instant case, it was admitted that the petitioner had, in fact, received notice from court already as on 24th March, 1984 and had failed to appear in court or make arrangements for his appearance through counsel and, therefore, he had been rightly set ex parte. Learned Counsel also contended that when there was a specific provision in section 126(2), Criminal Procedure Code, for having the ex parte order set aside the only course open to the petitioner, should have been to file an application under the above provision and not invoke the inherent power of this Court, which could be done only in the absence of any specific provision and that too only to secure the ends of justice. The present petition therefore was not maintainable.