REKHA JENA Vs. MANORANJAN JENA

JUDGEMENT

(1.) THIS petition arise's out of a proceeding under Section 488, Code of Criminal Procedure.

(2.) THE Petitioner is the wife of the opposite party. The parties are Christians and were married in the year 1951. The Petitioner filed a petition under Section 488, Code of Criminal Procedure (Misc. Case No. 20 of 1960) in the court of the Sub -divisional Magistrate, Cuttack, claiming maintenance with effect from 8 -7 -1960. After several adjournment the case was posted to 8 -9 -1962 for hearing. In the meanwhile, the opposite party filed a petition for adjournment under intimation to the Petitioner. This led the Petitioner not to be present on the date of hearing, and in the absence of the Petitioner the case was dismissed for default. Having come to know of the dismissal of the case as a result of the misrepresentation of the opposite party, the Petitioner on the very day filed a petition to recall the order of dismissal and the case was restored on the same day. On 15 -12 -1962 the opposite party again failed to appear and ex parte evidence was recorded on that day and the case stood adjourned to 15 -2 -1963 for further evidence. The opposite party made an application on that day contending that the Magistrate has no jurisdiction to pass an order of restoration on 8 -9 -1962. But the Magistrate did not pass any order on this petition and proceeded with the further evidence on 15 -2 -1963. In the meanwhile another Magistrate took over the case. On 26 -3 -1964 the opposite party again renewed his prayer before the new Magistrate who was in seisin of the case and by order dated 14 -5 -1904 the prayer of the opposite party was allowed and the order of restoration dated 8 -9 -196 was recalled with the result that the order of dismissal passed on that date was allowed to stand. It is against this order of the Magistrate recalling the order of restoration passed by his predecessor, this revision has been filed.

(3.) MR . Rahenoma, learned Counsel for the opposite party contended that once a case is dismissed for default, the Magistrate has no inherent jurisdiction to restore the case to file and the succeeding Magistrate was justified in recalling such an order and in any event, it was open to the Petitioner to file a fresh application for maintenance and this Court should not exercise its revisional jurisdiction under Section 439 or the inherent jurisdiction under Section 561 -A of the Code of Criminal Procedure.