KANHAIYA LAL Vs. SMT. MUNNI DEVI

JUDGEMENT

(1.) Opposite party Smt. Munni Devi brought a petition u/S. 488 of the CrPC claiming maintenance of Rs. 300/ - per month for herself and her child from applicant Kanhaiya Lal. An exparte order dated 14 -4 -1969 was passed by the Magistrate directing Kanhaiya Lal to pay a monthly allowance of Rs. 125/ - to Smt. Munni Devi and of Rs. 75/ - to her daughter. On 23 -9 -1969, Kanhaiya Lal filed an application supported by an affidavit for setting aside the exparte order on the assertion that he came to know of the order only on 16 -9 -1969 when an attachment was made of his moveables in the execution of the decree. The trial Magistrate rejected Kanhaiya Lal's application upon the view that it was barred by time having been moved more than three months' after the date of the exparte order. Kanhaiya Lal came up in revision, which was accepted by the learned Civil & Sessions Judge, Kanpur, who has made a reference recommending that the order dated 27 -7 -1970 rejecting Kanhaiya Lal's application be set aside and the Magistrate be directed to consider it afresh in accordance with law. Mr. J.N. Tewari, learned counsel for Smt. Munni Devi has urged that the proviso of sub -S. (6) of S. 488 is clear on the point inasmuch as it inter alia provides 'that any exparte order may be set aside for good cause shown, on application made within three months from the date thereof. Learned counsel contends that in terms of this proviso, it is apparent that the application has to be made within three months from the date of the order. Reliance was placed by Mr. J.N. Tiwari in support of his contention on a Single Judge decision of Madras High Court reported in A.S. Govindan v/s. Mrs. Margaret Jayammal ( : AIR 1950 Mad. 153) and on two other Single Judge decisions of Punjab High Court reported in Hari Singh Ishar Singh Jat v/s. Mst. Dhanno Hari Sing ( : 1962 (2) CrLJ 581) and Smt. Person Kaur v/s. Bakshish ( : AIR 1971 P&H 88). The Magistrate in arriving at his conclusion has referred to an another Single Judge decision of Mysore High Court for holding that the time of three months has to be reckoned from the date of the order and not from the date of its knowledge.

(2.) On the other hand, a single Judge of this Court in the case of Hari Singh v/s. Smt. Bhakhtwari ( : 1970 ACrR 202) has taken the view that as the order u/S. 488 CrPC determines the rights of the parties and casts a liability on the husband, it is essential for the ends of justice that the party affected thereby must have been apprised of it. Accordingly, the learned Judge basing his decision on some observations of the Supreme Court in the case of Harish Chandra v/s. Deputy Land Acquisition Officer (1951 AWR 500) took the view that the time begins to run in such a case not from the date of the order but from the date of its knowledge to the aggrieved party.

(3.) I notice that there is a divergence of opinion on this point between different High Courts. In the case of Johra Begum v/s. Mohammad Ghousa ( : AIR 1966 AP 50), a learned Single Judge of Andhra Pradesh High Court has taken the view contrary to the view expressed in the above noted Madras and Punjab cases.