HASAR ALI Vs. MUSTT BATASI BIBI

JUDGEMENT

(1.) FOR setting aside an order passed ex parte in a maintenance proceeding under Section 125 of the Code of Criminal Procedure (in short, 'the Code'), whether an application has to be made, under the proviso to Sub-Section (2) of Section 126 of the Code, within three months from the date of the making of the order of maintenance or within three months from the date of the knowledge of such an order is the moot question, which the present revision has raised for determination by this Court.

(2.) BEFORE I come to the real controversy raised in the present revision, some material facts, which gave rise to the present revision, may be noticed as follows: the opposite party herein made, as second party, an application, under Section 125 of the Code, claiming maintenance from the first party, i. e. , the petitioner herein. This application gave rise to Misc. Case No. 180/2001. On 15. 11. 2001, an order was passed, in the said maintenance proceeding by the Sub-Divisional Judicial Magistrate (Sadar), Mangaldoi, directing issuance of notice to the second party. In course of time, the process server submitted a report, dated 24. 7. 2002. According to this report, notices could not be earlier served personally on the second party for one reason or the other and, eventually, on 24. 7. 2002, when the process server found the addressee, i. e. , the second party, the second party refused to accept the notice on the ground that the name of the mouza, mentioned in the notice, was incorrect. This report also indicated that notices of the proceeding were earlier given twice to the family members of the second party. Following the report, so submitted, the learned SDJM, by order, dated 5. 8. 2002, treated the notice as served and decided to proceed with the case ex parte against the petitioner and fixed accordingly 21. 8. 2002 for ex parte hearing. Upon recording the evidence adduced by the first party, the learned SDJM passed an order, on 21. 8. 2002, directing the second party to pay maintenance allowance to the first party at the rate of Rs. 400/- per month. As no payment was made by the second party, the learned SDJM, on a petition filed, in this regard, by the first party, passed an order directing issuance of distress warrant against the second party. In execution of the warrant, so issued, the petitioner was arrested on 20. 9. 2003. The second party, i. e. , the petitioner herein, eventually, filed a petition, on 23. 9. 2003, praying for setting aside the order, dated 21. 8. 2002, passed against him ex parte directing him to make payment of maintenance. By order, dated 15. 10. 2003, the learned SDJM rejected the application made for vacating the ex parte order of maintenance, the ground for rejection being that the Court did not have locus standi to hear the petition. Thus, the petition, seeking to get set aside the ex parte order, was turned down for want of jurisdiction. It is this order, dated 15. 10. 2003, which stands impugned in the present revision by the second party.

(3.) THE case of the petitioner, in the present revision, is that all the orders, in the maintenance proceeding, were passed behind his back and that the petitioner came to know of the order, directing him to pay maintenance, upon his arrest on 20. 9. 2003 and within three days from the date of the knowledge of the order i. e. on 23. 9. 2003, the petitioner filed an application, under Section 126 (2) of the Code, for vacating the said ex parte order of maintenance, but the learned SDJM committed serious error of law in rejecting the said application on the ground that the application was time-barred.