INDRAMANI JENA Vs. MINJILATA JENA

JUDGEMENT

(1.) THIS revision is directed against an order passed by the learned S.D.J.M., Bhadrak refusing to set aside an ex -parte order of maintenance passed against the petitioner. The facts in brief are that the opposite parties, respectively the mother and daughter, filed Misc. Case No. 182/88 on 21 -12 -1988 claiming maintenance of Rs. 300/ - per month from the petitioner. Earlier, a Misc. Case filed by the opposite party No. 1 in the same Court numbered as Misc. Case No. 18/86 for maintenance had been dismissed for default on 5 -4 -1988. On 21 -12 -1988 notice was directed to be issued in M.C. No. 182/88 fixing 30 -1 -1989 for appearance. The notice having been returned back unserved, order was passed on 30 -1 -1989 for re -issue of the same fixing 7 -2 -1989 for service return. On 7 -2 -1989, the learned S.D.J.M. recorded the following order :

(2.) THE matter was thereafter beard ex -parte and disposed of on 20 -3 -1989 granting maintenance to the opposite parties at the rate of Rs. 300/ - per month, Misc. Case No. 45/89 out of which this revision arises was filed by the petitioner on 11 -4 -1989 complaining of non -service of summons upon him, of the opposite party No. 1 having not married him and opposite party No. 2 being not his daughter through opposite party No. 1. It was stated that he is an unemployed student preparing for examination, that his family and the family of the opposite parties had enmity with each other, that he is yet unmarried and that they belong to different communities. In the case, the petitioner examined himself as p.w. 1 and another Bharat Ch. Panda has been examined as p.w. 2 as regards service of summons on him as reported by the process server. The opposite parties did not examine any witness to oppose restoration. The learned Magistrate rejected the petition on 23 -1 -1990 disbelieving the evidence led by the petitioner and holding that he had sufficient notice in the matter.

(3.) IT Is however the submission of Mr. Misra that even if such satisfaction is not expressely recorded in this order, yet if such satisfaction can be garthered from the surrounding circumstance or the conduct of the person who had been set ex -parte, the mere non -recording of the satisfaction In the order should not vitiate the proceeding and should be upheld. Reliance has been placed by him in the matter on 1987 Cri.L.J. 399 Balan Nair v. Bhavant Amma Valsalamma and others (1987) DMC 238 (FB) a full Bench decision of the Kerala High Court. In para 13 of the judgment their Lordships declared in unmistakable terms that it is desirable for the Magistrate to pass formal order recording the satisfaction and giving reasons for the satisfaction and that the more informed view is that a formal order is desirable. It was further held that the absence of a formal order would not vitiate the order of the proceedings long as the record evidences circumstances which show the existence of reasons to satisfy the Magistrate on this score and which imply such satisfaction. Misra has also relied on A.I.R. 1978 S.C. 1807 (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others), and A.I.R. 1979 S.C. 362 (Bai Tahira v. All Hussain Fissalli Chothia and another) to contend that Section 125, Cr.P C. being a socio -economic liegislation is to receive a beneficial interpretation so as not to defeat its objective but to advance it.