BHUR SINGH Vs. GURDEV KAUR

JUDGEMENT

(1.) THIS case has a chequered history. The non -petitioner Smt. Gurdeo Kaur had filed an application Under Section 488 Cr. PC for grant of maintenance allowance against her husband the petitioner Bhur Singh, on 6 -9 -65. Notices of this application were issued to the present petitioner and the date fixed was 8 -10 -65. However, the petitioner did not appear on that day despite service and the learned Magistrate was also on leave. The matter then came up on 25 -11 -65. On that day again, the petitioner did not appear and, therefore, the learned Magistrate ordered ex -parte proceedings against him. The application of Smt. Gurdeo Kaur was accepted on the basis of the evidence led by her ex -parte and on 4 -7 -66, the learned Magistrate directed the present petitioner Bhur Singh to pay her Rs. 50/ - p.m. On 8 -8 -66, the petitioner applied for setting aside that ex -parte order. That application was rejected by the learned Magistrate on 26 -2 -67, on the ground that it was barred by time. The petitioner filed a revision and thereupon a reference was made to this Court, which was accepted and the matter was remanded to the learned Magistrate with a direction to the trial court holding that the application was within time and should be disposed of on merits after hearing both the parties. It appears that while the matter was going on after remand for the hearing of that application, inadvertently the petitioner was allowed to file his replies to the main application Under Section 488 Cr. PC and evidence of both the parties was recorded in the main application. The evidence was over on 10 -7 -76 and arguments were heard on 16 -7 -76, and the case was posted for orders on 21 -7 -76. On that day, the learned Magistrate was on leave and the case was adjourned to 4 -7 -76. It appears that while going through the record for passing the final order on 24 -7 -76, the learned Magisirate discovered that the proceedings in the original application Under Section 488 Cr. PC had wrongly been taken and under the direction of the High Court, he was only required to dispose of the present petitioner's application for setting aside the ex -perte order. He thereupon fixed the case for arguments on that application on 27 -7 -76. He beard the arguments on that day and on the same day, rejected this application holding that the grounds set forth by the petitioner were not sufficient. He also directed that the order passed by that court on 4 -7 -66 would hold good and that the present petitioner should pay the arrears of maintenance from 6 9 -65 upto date to the non -petitioner The present petitioner thereupon filed a revision before the learned Addl. Sessions Judge No. 2, Hanumangarh, which was partly accepted on 19 -3 -79. The learned Addl. Sessions Judge upheld the order dismissing the petitioner's application for setting aside the ex -parte order but set aside the part of the order of the learned lower court directing the petitioner to pay the arrears. Now the petitioner has come up before this Court praying that either the order refusing to set aside the ex -parte order be set aside or in the alternative, it must be deemed to have impliedly been set aside when the leerned Magistrate proceeded with the main application Under Section 488 Cr. PC, took the reply of the petitioner, recorded evidence of the parties and even finally heard the matter.

(2.) I have heard the learned counsel for the petitioner. The non -petitioner has not cared to appear.

(3.) NOW coming to the first contention, it must be pointed out that the proceedings in this case are as old as from 6 -9 -65. The petitioner having been served with the notice of this application and as found by the two courts below, the service was a personal service, did not care to appear before the court and in these circumstances, the court below was compelled to take ex -parte proceedings against him on the presumption that he was wilfully a voiding, his attendance. I do not see any reason to interfere with this concurrent findings of fact by the two courts below.