BRINDAWAN CHOUBEY Vs. RAM SANWARI

JUDGEMENT

(1.) The short question involved in this application under S.482, Cr. P.C. is as to whether the husband applicant Brindaban Chaubey should or should not pay the arrears of maintenance allowance directed to be paid to Smt. Ram Sanwari, wife opposite party, by an ex parte order of the concerned Magistrate dt. 5-12-83. (5-2-83 ?)

(2.) The facts are that on 17-6-1981 an application under S.125, Cr. P.C. was moved by Smt. Ram Sanwari against the applicant on whom the summons were directed to issue. It appears that the applicant had by then gone to the United States of America regarding his employment. A letter by the Magistrate was sent to the Embassy Office concerned for effecting service on the applicant husband. In the case two other persons, namely, Smt. Malika Devi, sister of the applicant and Anandi Prasad, her husband, were also arrayed as opposite parties. They filed a revision against the order of the Magistrate issuing process as against them through Sri Rama Shanker Tripathi, an advocate. That revision was allowed by the order of the Sessions Judge dt. 17-6-1981. Their names were deleted from the array of the parties. The said Sri Rama Shankar Tripathi, Advocate, is the registered power of attorney of the husband applicant. In the Magistrate's Court, the said Anandi Prasad and Smt. Malika Devi had engaged Sri Prabhat Kumar as their advocate who happens to be the son of the said Sri Rama Shankar Tripathi. Between June, 1981 and November, 1982 the Magistrate went on taking steps to effect service upon the applicant husband and by his order dt. 23-10-1982 had directed that notice on the husband was sufficient and fixed 6-11-1982 for orders because the husband was absent. Ex parte order against the husband directing payment of Rs. 500/- per month as maintenance allowance was passed by the Magistrate on 5-2-1983.

(3.) On behalf of the applicant an application was moved before the Magistrate on 24-3-1984 for recalling of the ex parte order dt. 5-2-1983. This was done on the strength of a letter dt. 5-3-1984 written by the applicant from America and addressed to his power of attorney (Muskrat-e-Am) Sri Rama Shankar Tripathi, Advocate. Notice was issued on that application by the Magistrate to the wife opposite party who filed objections and considering the entire matter the Magistrate held that no sufficient cause has been shown for setting aside the ex parte order and rejected the prayer of the husband by a reasoned order dt. 14-10-1985. On behalf of the husband applicant a revision was preferred before the Sessions Judge or 19-9-1986 by his Mukthar-e-Am Sri Rama Shankar Tripathi which was opposed by the wife opposite party. By a detailed judgement well supported by reasons, the Sessions Judge dismissed the said revision on 19-9-86. Then on 15-12-1986 this application under S.482, Cr. P.C. was filed in this Court. Notice was issued by a learned single Judge to the opposite party to show cause why the said application be not allowed at the admission stage. In the meantime the parties exchanged their affidavits. When the matter had come up on 29-8-88 a request on behalf of the applicant was made for adjournment of the case so as to enable the applicant's counsel to obtain instructions from his client on the feasibility of maintaining the opposite party (wife). Thereafter the matter was listed on 6-9-1988, 14-10-1988, and 29-10-1988 and ultimately on 2-11-1988 one month and no more was allowed to the learned counsel for the applicant to obtain instructions on the points detailed above.