GURDAS SINGH Vs. MOHINDER KAUR

JUDGEMENT

(1.) Gurdas Singh petitioner through his general attorney Hardial Singh has filed this petition under section 401 of the Code of Criminal Procedure, 1973, for quashing the order dated 21-12-1989 of the Judicial Magistrate 1st Class, Samrala, holding that in the proceedings under section 125 of the Code, the appearance of Gurdas Singh respondent through his general attorney is no appearance in the eye of law and that Gurdas Singh be proceeded against ex parte.

(2.) The brief resume of facts relevant for the disposal of this petition is that Mohinder Kaur wife of aforesaid Gurdas Singh on behalf of herself and on behalf of her minor daughter Jinder Pal filed a petition under section 125 of the Code against Gurdas Singh claiming maintenance allowance at the rate of Rs. 400/- per month for herself and Rs. 200/- per month on behalf of the minor child. Attempts were made to serve Gurdas Singh respondent on his native village address, i.e., at village Kube but when the report on the summons was received that he had settled in America, he was ordered to be served by publication in the newspaper vide order dated 8-8-1989 for 15-9-1989. On 15-9-1989, Shri K.C. Kapur, Advocate, put in appearance on behalf of Gurdas Singh as Hardial Singh general attorney of Gurdas Singh had engaged him to do so. The case was then adjourned to 25-9-1989 for filing reply en behalf of Gurdas Singh when Mohinder Kaur petitioner raised a preliminary objection that Shri K.C. Kapur is not validly representing Gurdas Singh. The trial Court vide the impugned order did not recognise the appearance of Shri K.C. Kapur on behalf of Gurdas Singh respondent and ordered ex parte proceedings, inter alia, on the ground of specific provision in section 126 of the Code to the effect that evidence in proceedings under section 125 of the Code shall be recorded in the presence of the husband or the father as the case may be unless the Court for valid reasons exempts the presence of such person and in that case in the presence of the counsel of such person. I have heard the learned counsel for the parties.

(3.) The perusal of the photostat copy of the general attorney of aforesaid Gurdas Singh in favour of Hardial Singh does not reveal that the general attorney was authorised to defend such like proceedings of semi-civil/semi-criminal nature on behalf of aforesaid Gunlais Singh. Thus, it can be well-said that the present petition was also not filed by a competent person on behalf of Gurdas Singh. Although there is no procedure prescribed in the Code of Criminal Procedure for effecting service through newspaper yet, all the same as the attorney of aforesaid Gurdas Singh appointed for other purposes has put in appearance, it has to be inferred that Gurdas Singh had knowledge of the pendency of the present proceedings before the trial Court. Anyhow, keeping in view the cardinal principle of administration of justice that nobody should be condemned unheard, it would be open to Gurdas Singh to put in appearance in these proceedings before the trial Court, especially when in pursuance of the impugned ex parte order, no evidence had been recorded so far. This petition stands disposed to accordingly. Hardial Singh, general attorney of Gurdas Singh is burdened with costs of Rs. 2,000/- for putting Mohinder Kaur and the minor daughter to unnecessary litigation. Mohinder Kaur petitioner through her counsel is directed to appear before the trial Court on 20-3-1991. The trial Court file be sent back forthwith.