MANJIT SINGH Vs. GURDISH KAUR

JUDGEMENT

(1.) THIS petition purports to have been filed under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, the Code) with the allegations which are these: The respondent filed an application under Section 125 of the Code for the grant of maintenance against her husband Manjit Singh petitioner. The petitioner did not put in appearance in spite of what the Magistrate held to due service and hence ex -parte proceedings were taken against him. Eventually on November 20, 1981, an order was passed granting Rs. 175/ - per mensem as maintenance to the respondent from the date of the filing of the application. Feeling aggrieved, the petitioner filed Revision Petition No. 15 of 1982 and the same was dismissed by the learned Additional Sessions Judge, Ferozepur, on January 5, 1983. By means of the present petition, the order of the learned Additional Sessions Judge, Ferozepur, is sought to be quashed by invoking the provisions of Section 482 of the Code.

(2.) MR . R.S. Bindra has attempted to assail the original order of the Magistrate granting maintenance to the wife ex -parte and contended that such an order cannot be sustained on any valid ground. It is, however, not necessary to go into the merits of that order because as observed by the learned Additional Sessions Judge, the merits could be gone into only if the petitioner had moved an application under Section 126 of the Code in the trial Court for setting aside the ex -parte order within 90 days. It is common ground between the parties that the petitioner did not move any such application before the trial magistrate. He rather went up in revision to get the ex -parte order set aside, which he could not do. Mr. Bindra has urged that the records can be summoned from the trial Court and this Court can suo motu take notice of the illegal ex -parte order passed by the Magistrate and set it aside. He, however, forgets that the inherent powers of this Court cannot be exercised to set at naught a mandatory provision of law. If I concede to the request of the learned counsel and set aside the ex -parte order passed by the trial Magistrate under Section 125 of the Code, I would be acting in violation of the provisions of Section 126 of the Code, which not only lay down that an application for setting aside such an order has to be made within 3 months from the date of the order but also that such an application lies to the Magistrate, who had passed the ex -parte order and not to any superior Court. In this view I am fortified by the decision in the State of Mysore v. Ghousddin and another, 1972 Crl.L.J. 808 and Hari Singh v. Mst. Dhanno, 1962 Punjab Law Reporter 59.

(3.) IN any case before invoking the inherent powers of this Court under Section 482 of the Code, the petitioner is called upon to show some abuse of the process of Court or a case of gross in justice which is apparent on the record. No such thing is indicated in the present case. The order passed by the trial Court fixing the maintenance allowance a Rs. 175/ - P.M. is quite just and proper and there is no occasion to quash or vary the same. The present petition is accordingly dismissed, but with no order as to costs. Petition dismissed.