SHAM SUNDER Vs. KAILASH RANI

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure (for short the Code) calling in question the order, Annexure P/2 dated 8-10-1986 passed by Judicial Magistrate and order of Addl. Sessions Judge Annexure P/1 dated 14-2-1989 dismissing the revision against the said order. The brief material facts are that by order dated 3-5-1976, maintenance @ 100/- P. M. was fixed under Section 125 of the Cr. P. C. by Judicial Magistrate in favour of the respondent Shrimati Kailash Rani. Later on Kailash Rani made an application under Section 127 of the Code for enhancement of the maintenance allowance. It appears that notice of the application for enhancement was sent by registered post to the petitioner at Primary Health Centre, Rajoke. The registered letter was returned with the report of refusal. The case of the petitioner is that at that time he was, in fact, posted at Rural Dispensary, Valtoha attached to the aforesaid Primary Health Centre, Rajoke. In fact, on the date he is supposed to have refused to accept service, he was away for a Refresher Course to Medical College, Amritsar. The petitioner was proceeded against ex-parte and by order dated 5-5-1983, Annexure P/3, the learned Magistrate enhanced the amount of maintenance to Rs. 175/- from the date of order.

(2.) IN pursuance of the order, salary of the petitioner was attached with effect from December, 1983. However, the petitioner made an application dated 15-5-1984 i. e. after one year of the order enhancing the amount for setting aside the ex-parte order. The application was dismissed by the learned Magistrate by order, Annexure P/2 dated 8-10-1986 and the revision filed there against was dismissed by the learned Additional Sessions Judge by order, Annexure P/1 dated 14-2-1989. In these proceedings, the petitioner seeks quashing of the aforesaid order, Annexure P/1 and P/2.

(3.) THE facts stated above are not in dispute. The learned Additional Sessions Judge has based his order on two grounds : (i) that the period of limitation prescribed under Section 126 (2) of the Code is three months from the date of the order whereas the application for setting aside the ex-parte order was made more than one year after the order and as such it was barred by limitation; and (ii) the petitioner failed to rebut the initial presumption of correctness of the report of Postman regarding refusal of service and it should be presumed that the service was effected in accordance with law. After hearing the learned counsel for both the parties I find that it is not possible to sustain the intrigued orders.