ABDUL KAYYUM Vs. SULTANA BEGUM & ORS.

JUDGEMENT

(1.) By this application under Sec. 482 of Code of Criminal Procedure, the applicant seeks to invoke the inherent powers of the court to set aside the orders passed by Judicial Magistrate First Class, Pusad, on 11-6-1982 and 7-7-1982 in Criminal Case No. 45/81 and the order passed by Extra Additional Sessions Judge, Yeotmal, in Criminal Revision Application No. 92/1982 decided on 13.12.1983.

(2.) The brief facts leading to the present petition are that, respondent Nos. 1 and 2 had filed proceedings under Sec. 125 of Code Criminal Procedure for grant of maintenance against the applicant before Judicial Magistrate First Class, Pusad. It appears that instead of serving the summons to the applicant who was non-applicant in those proceedings as per provisions of the Code, the Trial Judge ordered the issue of summons by Registered Post. The said notice was returned with an endorsement "refused to accept". Relying on the said endorsement of the postal service, the trial judge proceeded ex-parte against the applicant by its order dated 11-6-1982. Thereafter, the evidence of the present non-applicants who were applicants before the trial Court was recorded on 6-7.1982 in the absence of the present applicant. Final order came to be passed on 7-7-1982 whereby the trial Judge ordered maintenance of Rs. 400.00 per month to the respondent.

(3.) The applicant husband learned about the ex-parte order on 26-8-1982 and immediately moved an application before the trial Judge tinder Sec. 126 of Criminal Procedure Code, pleading that on the alleged date of service, when the refusal to accept endorsement was made by the postman, the applicant was in fact admitted in a hospital. He further contended that the endorsement on the Registered Post envelop was obviously false and concocted, secured by the non-applicants with the Postman. This application was supported by his affidavit. The learned Magistrate, however, rejected the application for setting aside the ex-parte order.