PARAS NATH Vs. STATE

JUDGEMENT

(1.) IT would appear that proceedings under Section 133, Cr. P. C. , directed against the applicants were decid ed finally on February 13, 1930, ex parte. The applicants, as per averment made in the application and affidavit, came to know of the ex parte order in question on March 5, 1980, and thereafter moved the Sub-Divi sional Magistrate, but the Sub Divisional Magistrate refused to interfere, holding that he had no jurisdic tion to review his earlier or der. A revision was then filed. The copy of the judgment in revision is annexed. The Vlth Additional Sessions Judge, Etawah, held that the revisionist failed to show sufficient reasonable cause for condonation of delay and the delay cannot be condoned. IT, therefore, rejected the revision without entering into the merits of the case. The view taken by the learned Additional Sessions Judge is that in view of Article 131 of the Limitation Act, 90 days limitation is provided, and as order was of February 13, 1980 while the revision was filed on June 3. 1880 it was time barred. The learned Addi tional Sessions Judge has further observed that the revisionist was very well in know of the order on March 5, 1980 and the limitation having not expired, the revision should have been filed within 90 days of the order. IT was further observed that the subsequent order was also passed on April 10, 1980, which left ample time for filing the revision within 90 days of the or der. The case of Hari Singh v. Srnt. Rakht-awari 1970 A. C. C. 216, was cited before the Addition.-" Sessions Judge and has also been cited here. IT was a case of grant of maintenance un der Section 488, Cr. P. C. (old ). The impli cation of proviso to sub-clause (6) was con sidered, the proviso lays down that if the Magistrate is satisfied that the other since is wilfully avoiding service or neglects to attend the court, the Magistrate may pro ceed to hear and determine the case ex parte and may set aside the ex parte order within three months from the date thereof, i. e. , the date of order. In the aforesaid case it has been held that the limitation should have been reckoned from the date of the know ledge to the aggrieved party. The distinc tion drawn by the Additional Sessions Judge is not convincing. The Additional Sessions Judge distinguished the case on considera tion that the knowledge itself was beyond 90 days. I think, the ruling could not be distinguished on such consideration. The proposition laid down is that the limita tion in such cases is to be counted not from the date of the order, but from the date of knowledge, and that principle will hold good for this case also. In the Division, Bench case of National Thermal Power Cor poration v. Raghunath Prasad A I. R. 1931 Alld. 344, which was a case under the Land Acquisition Act, it was held that where judgment is pro nounced in absence of parties, the expres sion, the date of the award' used in proviso (b) to Sec. 18 of the Land Acquisition Act would mean the date when the award is known either actually or constructively. The Supreme Court cases of Raja Harish Chandra v. Land Acquisition Officer A. I. R. 1961 S. C. 1500, and State of Punjab v. Kesar Jahan Begum A. I. R. 1963 S. C. 1604, were re lied upon. The aforesaid cases related to the land acquisition proceedings. Similar view was taken in another case Madan Lal v. State of U. P. A. T. R. S. C. 2085. That case related to Indian Forest Act and Section 11 of the Act provided limitation of three months from the date of the order for filing appeal. Yet it was held by the Supreme Court that the limitation would run from the date the ag grieved party came to know of the order and not from the date the order was actual ly passed. In fact, the crux of the matter in such situation is to determine whether the party concerned himself was at fault and lack of knowledge can be attributed to any such fault. If the party is not at fault, natural justice would require that he should be heard in revision, when filed within 90 days of the knowledge of the order. Unfortu nately, any copy of the order of the Magis trate is not annexed "and this Court cannot enter into a detailed enquiry whether there was a lack of knowledge and, if so, whether it is attributable to any fault of the appli cant himself. The Sessions Judge disposing of the revision also did not enter into any enquiry in that; respect and had proceeded on the assumption that the knowledge was on March 5. 1980 and rejected the revision holding that the limitation would still run from the date of the order and not from the date of knowledge. This has resulted into failure of justice. IT would, therefore, be desirable simply to quash the order dated September 29, 1980 of the VI Additional Sessions Judge, Etawah, with a direction that he may proceed to dispose of the revi sion afresh in the light of my aforesaid ob servations as to first detemine whether there was a lack of knowledge of the order and, if so, whether it is attributable to any fault of the revisionist and, if not, to also dis pose of the revision on merits according to law. The application under Section 482, Cr. P. C. , is partly allowed and the order dated September 29, 1980 of VI Additional Sessions Judge, Etawah, only is quashed and the Ad ditional Sessions Judge or competent Court where the revision is transferred is directed to dispose of the revision, as aforesaid, in ac cordance with law. .