GURCHARAN SINGH Vs. AMARJIT KAUR

JUDGEMENT

(1.) GURCHARAN Singh petitioner has come up in revision challenging the order of the Judicial Magistrate First Class, Rajpura, dated 3rd May, 1984, by which he dismissed the application of the petitioner praying for the setting aside of the exparte order passed against him under Section 125 of the Code of Criminal Procedure.

(2.) SHRIMATI Amarjit Kaur respondent wife of the petitioner filed a petition under section 125 of the Code of Criminal Procedure agasint the petitioner in the year 1980 for the grant of maintenance to her and her minor son. The learned Judicial Magistrate First Class, Rajpura, vide his exparte order dated 6th September, 1980, allowed Rs. 300 as maintenance to respondent and her minor son. The petitioner filed an application on 5th January, 1983 for setting aside the exparte order dated 6th September, 1980. The main ground taken in the application was that since he was in Dubai in the year 1980 no service regarding the application pending against him under Section 125 of the Code of Criminal Procedure was effected upon him and that it was only on his return from Dubai in December, 1982, that the came to know of the exparte and then he made the application for setting aside the same. The leaned Magistrate in his order which is impugned in this revision came to a definite finding that admittedly the petitioner was residing in Dubai at the time of the pendency of the proceedings under Section 125 of the Code of Criminal Procedure and that the respondents had not brought any material o record to show that the petitioner was properly served. So, he found that this was a good ground for setting aside the exparte order but in the latter part of the Judgment he found that since the application for the setting aside of the exparte order was made after the expiry of the period of limitation of three months from the date of the exparte order, so the fact that the petitioner came to know of the order in December, 1982, when he came back from Dubai to India was of no avail to him, because, according to the learned Magistrate, it was not the date of the knowledge that mattered by the date of exparte order as per Section 126(2) of the Code of Criminal Procedure.

(3.) MR . Vinay Mittal learned counsel for the petitioner, while challenging this part of the order of the learned Magistrate has placed reliance on a Full Bench authority of this Court reported as Joginder Singh v. Smt. Balkarn Kaur, 1971 PLR 679, wherein in a similar situation their Lordships came to a finding that the crucial date for counting the period of limitation was not the date of the order sought to be set aside but the date of knowledge of the order. So in view of Joginder Singh's case (supra) the order of the learned Magistrate dated 3rd May, 1984, cannot be sustained. Consequently I allow this revision and set aside the impugned order dated 3rd May, 1984. This order would result in the setting aside of the original order dated 6th September, 1980, passed against the petitioner exparte. The parties, however, are directed through their counsel to appeal before the trial Magistrate on 20th August, 1984. Petition allowed.