PARSON KAUR Vs. BAKSHISH SINGH

JUDGEMENT

(1.) ON an application made by Smt. Parsan Kaur, petitioner , against her husband, Bakhshish Singh, under Section 488, Criminal P. C. , she and her minor son were granted maintenance at the rate of Rs. 200/per mensem by an order of the Judicial Magistrate 1st Class, Ambala, dated the 1st October, 1966. The maintenance was, however, granted with effect from the date of the application, i. e. , 23rd of March, 1966, Subsequently the petitioner applied to the Magistrate for realisation of the arrears of maintenance amounting to Rs. 1,800/ -. On service of notice upon him the respondent Bakhshish Singh, approached the Magistrate on 22nd of July, 1967, for setting aside the ex parte order of maintenance in exercise of his powers under Section 488 (6) of the Code of Criminal Procedure. This application was contested inter alia on the plea that he was not duly served in the original proceedings and it was about a month back that he had learnt that such an order had been passed against him. in contesting this prayer for setting aside the ex parte order, Smt. Parsan Kaur pleaded inter alia that the application under sub-section (6) of S. 488 of the Code of Criminal Procedure, having been made after more than 30 days (3 months?) from the date of the order prescribed under that provision, was barred by time and was thus liable to dismissal without going into its merits. The learned Magistrate by his order dated the 21st of September, 1967, however, directed that a preliminary enquiry about the date of the knowledge of the exparte decree passed against Bakhshish Singh, be made. aggrieved by this order, Smt. Parsan Kaur invoked the revisional jurisdiction of the Court of Session at Ambala, reiterating her plea that her husband's application for setting aside the order of maintenance being beyond the period of limitation prescribed under sub-section (6) of s. 488 of the Code of Criminal Procedure, had to be dismissed. The learned Sessions Judge, on due consideration of the matter, held that the period f three months prescribed under subsection (6) of s. 488 of the Code of Criminal Procedure, for setting aside an ex parte order of maintenance, had to be reckoned from the date of that order and the question of respondent's knowledge of such an order was not relevant. He has referred to case by his order dated the 3rd of April, 1968, recommending that the Magistrate's order dated the 21st September, 1967, directing a preliminary enquiry to be made of the date when the respondent came to know of the ex parte order of maintenance, be quashed.

(2.) IN opposing this recommendation, Mr. R. L. Sharma, appearing for the respondent-husband, has urged that since the order of maintenance, that has been sought to be set aside, was passed in the respondent's absence and without proper service of the notice of the original application for maintenance on him the period of three months prescribed under sub-section (6) of S. 488 of the code of Criminal Procedure, must be reckoned not from the date of their order but from the date on which the respondent became aware of it. in support of this contention, he has cited Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Office, AIR 1961 SC 1500 and Zohra Bagum alias Aysha Begum v. Mohamed Ghouse Qadri Qadeeri, AIR 1966 Andh Pra 50. The Supreme court decision on which reliance is placed, relates to the question of limitation for an application under Section 18 (2) of the Land Acquisition Act, 1894, or reference to the Court. Under one of the provisions to that section, the application for reference has to be made within six weeks from the date of the Collector's award. Their Lordships of the Supreme Court, however, ruled that the expression "date of the award" used in proviso (b) to Section 18 (2) of the Act must mean the date when the award is either communicated to the party or comes to his knowledge either actually or constructively, observing that it would be unreasonable to construe the words "from the date of the Collector's award", used in this proviso in a literal or mechanical way. Relying upon this observation, Jaganmohan Reddy, J. , while dealing with an application made under the proviso to subsection (6) of S. 488 of the Code of Criminal Procedure, in AIR 1966 Andh Pra 50, has held that limitation for setting aside th ex parte order of maintenance made under 488 of the Code of Criminal Procedure, begins from the date of the knowledge of the order by the aggrieved party and not from the date on which that order was passed.

(3.) THE petitioner's counsel Mr. Sunder Lal, submits that the Supreme Court case on which Jaganmohan Reddy, J. has relied, is clearly distinguishable and does not justify the view taken in Zohra Begum's case, AIR 1966 Andh Pra 50. This contention, in my opinion, has considerable force. In holding that under proviso (b) to sub-section (2) of S. 18 of the Land Acquisition Act, the period prescribed for making an application for reference to the Court has to be completed from the date of the knowledge of Collector's award, this is what Gajendragadkar, J. (as he then was) delivering the judgment of the court observed:-