MOHAMMAD AKBAR ALI SARDAR Vs. FIROZE KHATUN BIBI

JUDGEMENT

(1.) This Rule arises on an application under Sections 401 and 482 of the Criminal Procedure Code read with Article 227 of the Constitution and is directed against exparte order dated 25.2.76 and order dated 22.12.76 passed by the learned Judicial Magistrate in Case No.3 of 75 under Section 125 of the Code and also rejecting the restoration application of the petitioner under Section 126(2) of the Code.

(2.) The facts of the case may briefly be stated as follows: - ?The opposite party filed an application under Section 125 of the Code claiming maintenance. An exparte order was passed by the learned Magistrate on 25.2.76. It is the case of the petitioner that the petitioner did not know anything about the case filed against him, as such he could not appear and an exparte order was passed against him. After having come to know of the order only on 20th August 1976 in connection with the execution case arising out of the maintenance proceeding, the petitioner filed an application on 1.9.76 for setting aside the exparte order and for restoration of the case. The said application was rejected by the learned Magistrate only on the ground of limitation holding that the application was filed beyond three months from the date of the order. Being aggrieved, the petitioner has come up to this Court.

(3.) In the first place it is stated by Mr. Satyajit Mondal, learned Advocate appearing on behalf of the petitioner, that when on 25th of February 1976 the learned Magistrate passed an exparte order he did not satisfy himself whether the summons was only served on the petitioner. It appears that there is an endorsement refused on the registered post card which is said to have been sent to the petitioner. From the endorsement 'refused' it is sometimes held that the service was duly effected. But in the present case the petitioner came up with a case before the learned Magistrate that the summons was never offered to him and he did not refuse to accept the same. It was only on 20th of August 1976 he came to know about the exparte order passed on 25th of February 1976. Mr. Mondal submits that the limitation will run from the date of the knowledge and not from the date of the order. On this point there are conflicting decisions of several High Courts. I requested Mr. Prasun Chandra Ghosh learned advocate who was present in Court at the time of hearing to assist me to decide the point of limitation. Mr. Ghosh was kind enough to refer me to an unreported decision of this Court (1) Criminal Revision No. 439 of 1963. He has also referred to decisions reported in (2) AIR 1966 Andhra Pradesh 50 and (3) 1974 Criminal Law Journal 1234. I am thankful to Mr. Ghosh for the assistance rendered by him. Mr. Mondal places before me a decision of this Court reported in (4) Hemendra Nath Choudhury v. Sm. Archana Choudhury, AIR 1971 Calcutta 244. In this case Talukdar, J. relying on the principle of law laid down by Their Lordships of the Supreme Court in (5) Harish Chandra v. Deputy Land Acquisition Officer, AIR 1961 SC 1500 held that ?If there was no knowledge on the part of the affected party about the relevant proceeding and the ultimate order passed exparte therein, the period of limitation is not to run from the date of the order but from the date of the knowledge. Any other interpretation will unnecessarily circumscribe the intention of the legislature and would not be expedient in the interests of justice. If the exparte order for maintenance is vitiated because of the absence of a legal service, the ultimate order passed is not a legal and proper one and as such there is no question of any limitation running from the same?. In (2) Johra Begum alias Aysha Begum v. Mohammed Ghouse Qadri Qaderi and another, AIR 1966 Andhra Pradesh 50. Jaganmohan Reddy, J. relying on AIR 1961 SC 1500 1500 held that ?The limitation for setting aside an exparte order of maintenance begins from the date of knowledge of the order to the aggrieved party and not from the date of passing of the order.? His Lordship also considered the contrary view expressed in (6) AIR 1950 Madras 153. In (3) Dhani Ram v. State and another, 1974 Criminal Law Journal 1234 relying on the decisions reported in (5) AIR 1961 SC 1500 and (2) AIR 1966 Andhra Pradesh 50 it was held that ?the limitation for setting aside an exparte order of maintenance begins from the date of knowledge of the order to the aggrieved party and not from the date of passing of the order?. In an unreported decision of this Court in (1) Criminal Revision No.439 of 1963 disposed of by K. C. Sen, J. on 28.8.64 while considering whether the petitioner against whom an exparte order of maintenance was passed could take up a plea that he did not know of the exparte order and as such he could not file the application within time as he was prevented by fraud practised by the opposite party, it was held that ?There being no provision in the latter part of the proviso to Section 488(6) expressly excluding the provision of Section 18 of the Indian Limitation Act referred to before it will be attracted in suitable cases as enumerated therein?. In coming to such conclusion His Lordships relied on a similar observation by this Court in a Bench decision reported in (7) Raja Sati Prosad Garga Bahadur and others v. Gobinda Chandra See, 33 CWN 227.