RAM CHANDER Vs. STATE OF U P

JUDGEMENT

(1.) Ram Chander is the husband of opposite party No.2 Smt. Champa Devi and father of opposite party No.3 Usha Devi. This fact is not disputed. Proceedings under section 125 of the Cr. P.C. had been started by the two ladies against Ram Chander. The case was registered as Criminal Case No. 582 of 1985 and it was pending before the IV Munsif Magistrate, Varanasi.

(2.) On 2-6-1986 the present revisionists application for stay was taken up. The order passed by the learned Munsif Magistrate was to allow this petition on payment of costs and on further condition this he paysT all previous costs also within one week. With this condition, the written statement was ordered to be accepted on the record. The order sheet shows that the next date fixed was 11-6-1986. The contention of the revisionist is that his Counsel however informed him that the next date fixed in this case was 24-6-1986 and he was never informed of 11.6-86 as the next date. The result was that he did not appear on 11-6-1986 when a part of the hearing was made and on 12-6-1986 when the judgment was delivered. He however appeared on 24-6-86 and moved an application for setting aside the ex-parte order dated 12-6-86. Notices were issued and ultimately the learned Magistrate by his order dated 18.10-1986 allowed his petition on condition that be pays within one week to the other side all the costs levied up to now.

(3.) Against this order, the present opposite parties went up in revision and Mr. Shripal Singh, IV Additional Sessions Judge, Varanasi by his order dated 20-3-1987 allowed that revision holding that a person against whom an order of maintenance is proposed to be made, if he is served with notice of the petition and appears in Court, he cannot be said to be willfully avoiding service and willfully neglecting to attend the Court and if an order awarding maintenance allowance is made by the Magistrate; in his absence, it cannot be reviewed by the Magistrate. Reliance was placed on a Calcutta case of Osman Gani v. Tahuran-nessa Begum. A single Judge of that Court was of the view that the proviso was not attracted to cases where the opposite party having been served with notice appears in Court, proceeds to contest the application, but does not appear on the last date when evidence is recorded. The Court was referring the section 488(6) of the Old Code, which is equivalent to the present section 126 of the new Code.