MADAN MOHAN SRIVASTAVA Vs. STATE AND ANOTHER

JUDGEMENT

(1.) ON 18 -3 -1966 the SDO, Ballia by his order refused to set aside an exparte order passed against the Applicant Madan Mohan on 8 -10 -1965, directing him to pay Rs. 50/ - p.m. as maintenance to his wife Smt. Usha Devi.

(2.) SRI Madan Mohan filed a petition in revision before the learned Sessions Judge Ballia against the order of the learned Magistrate. The learned Sessions Judge accepted the contention made on behalf of Sri Madan Mohan and made a recommendation to this Court that the order passed by the learned Magistrate in question be set aside and the Applicant's application for setting aside the ex parte order dated 8 -10 -1965 be allowed and the learned Magistrate be directed to hear the application Under Section 488 Code of Criminal Procedure on merits.

(3.) IT is true that there is no provision in Code of Criminal Procedure prescribing publication in newspaper as a mode of service of summons. The learned Magistrate should not therefore have directed the publication of the summons in the newspaper. When an ex parte order is made against the opposite party in the proceedings Under Section 488 Code of Criminal Procedure it is open to such aggrieved party to apply, to get the order set aside, within three months from the date of the order and such exparte order will be set aside provided cause for doing so is shown as provided for by the proviso to Clause (vi) of Section 488 Code of Criminal Procedure. The learned Sessions Judge came to the conclusion that on the materials on the record it was not possible to hold that Sri Madan Mohan had knowledge of the proceedings. The only circumstance relied upon by the learned Magistrate appears to be that while oil leave Sri Madan Mohan was himself present at Ballia where the proceedings at the instance of his alleged wife were pending. That circumstance however is not conclusive of the fact that Madan Mohan had knowledge of the proceedings. Apart from it, if the person sought to be served with the summons happens to be a government servant the summons are to be issued through the head of the department in which he is employed. In the instant case also it was sent through the officials of the Hydel Department, Allahabad. The only manner in which such summons could be served as required by Section 72 read with Section 69 of the Code of Criminal Procedure was personal service on the addressee.