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- 12-88 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 5-4-88. On 21-12-88 notice was directed to be issued in M.C. No. 182/88 fixing 30-1-89 for appearance. The notice having been returned back unserved, order was passed on 30-1-89 for reissue of the same fixing 7-2-89 for service return. On 7-2-89, the learned S.D.J.M. recorded the following order:-

(2.) Miss Das in assailing the order urges that prima facie the summons not to have been served upon the petitioner; the learned Magistrate having acted without jurisdiction in setting the petitioner ex parte; and that the conclusion reached regarding service of summons on the petitioner being wholly contrary to the evidence on record. It is her submission that since the summons purported to have been served upon the petitioner was handed over to the process server by the Nazir on 31-1-89 as appears from the endorsement on the summons itself and the report of the process server being that he offered the summons to the petitioner at 9.00 a.m., read out the same to him and on his refusal to accept affixed the notice on his door, is not believable as the summons could only have been handed over to the process server on 31-1-89 during office hours and hence it could not have been offered to the petitioner at 9.00 a.m. that very day. The submission is repelled by the learned counsel for the opposite parties contending that the report of the process server does not show the summons to have been offered to the petitioner at 9.00 a.m. but only to have been offered at 9 hours. I am not persuaded to accept the submission of Mr. Misra in this regard since ordinarily 9 hours would mean the time in the morning and if the summons would have been offered at night, the process server would have reported the same having been offered at 9 a.m. It thus raises a reasonable suspicion, as submitted by Miss Das, that summons had not been served on the petitioner at 9.00 a.m. That a part, the provision of S. 126(2), Cr.P.C. authorises the Magistrate to proceed to hear and determine the application under S. 125, Cr. P.C. ex parte if he is satisfied that the person against whom the maintenance order is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court. The essence of the provision is satisfaction to be reached by the Magistrate of the person concerned wilfully avoiding service or wilfully neglecting to attend the Court. It is preeminently desirable that the order setting a person ex parte must disclose ex facie such satisfaction having been reached. Since the order is available to be scrutinised in revisional jurisdiction of this Court, it is necessary to be a speaking one so as to disclose the mind of the learned Magistrate to enable the High Court, while in seisin of the case, to find out the justifiability of the order. Admittedly, as the order of the learned Magistrate extracted above would show, no such satisfaction was recorded. The question has been dealt with by several decisions of this Court and it has been held that in the absence of recording by the Magistrate indicating that the person concerned was wilfully avoiding service or was wilfully neglecting to attend the Court, the Magistrate would have no jurisdiction to proceed ex parte. Reference may be made to (1985) 60 CLT 433 (Bharat alias Kathia Mallik v. Niasi Mallik), (1988) 65 CLT 146 (Biswanath Kabi v. Susama Dei) and (1989) 67 CLT 644 (Kasinath Mohapatra v. Arnapurana Panda alias Mohapatra). It is as such a matter of jurisdiction of the learned Magistrate to enable him to proceed ex parte that he must record his satisfaction for proceeding ex parte.

(3.) It is however the submission of Mr. Misra that even if such satisfaction is not expressly recorded in the order, yet if such satisfaction can be gathered from the surrounding circumstances 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 LJ 399: (AIR 1987 Ker 110) (Balan Nair v. Bhavani Amma Valsalamma), 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 a 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 or the proceedings so long as the record evidence circumstances which show the existence of reasons of satisfy the Magistrate on this score and which imply such satisfaction, Mr. Misra has also relied on AIR 1978 SC 1807 : (1979 Cri LJ 3) (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal) and AIR 1979 SC 362 : (1979 Cri LJ 151) (Bai Tahira v. Ali Hussain Fissalli Chothia) to contend that S. 125, Cr.P.C. being a socio-economic legislation is to receive a beneficial interpretation so as not to defeat its objective but to advance it.