DHIRENDRA LAL AGRAWAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioner has challenged the order dtd. 21/9/2014 passed in Misc. Case No. 8 of 2013 and the order dtd. 11/5/2016 by which the application seeking recall of ex-parte order dtd. 21/9/2014 has been dismissed.

(2.) The facts of this case are confined in a narrow compass. By an order dtd. 23/6/1981 passed in Maintenance Case No. 35 of 1981, the wife of the petitioner was granted maintenance of Rs.100.00 per month and the minor daughter Rs.50.00 per month. An application under Sec. 127 of the Code of Criminal Procedure was filed in the year, 2013 for enhancement of the monthly maintenance allowance to Rs.3,000.00 per month. On this application, notice was issued to the petitioner and upon service of summons on the petitioner's son the proceeding in Misc. Case No. 8 of 2013 was ordered ex-parte against the petitioner. In the meantime, a distress wan-ant was issued against the petitioner and thereafter he filed two applications one for stay of distress warrant and the other seeking recall of ex-parte order dtd. 21/9/2014. Both the applications have been dismissed by a common order dtd. 11/5/2016.

(3.) Mr. Mayank Mohit Sinha, the learned counsel for the petitioner referring to the judgments in "Mrs. Emkamma Bai v. Ravikumar" reported in 1991 Supreme (Mad) 700, "Tarini Charan Das v. On the Death of Rajani Kanta Choudhury, His Heirs And Legal Representatives Smti Minoti Choudhury @ Niyati Choudhury" reported in 1990 2 GauLJ 457, "Om Prakash v. Brij Nath Sharma ." reported in 1980 0 Supreme (Del) 165 and "Abbas represented by His Power of Attorney Holder S. Abdulla v. Moideen Kunhi" reported in 2014 0 Supreme (Ker) 465 contends that service of summons upon son of the petitioner is not valid service upon the petitioner and therefore the order dtd. 11/5/2016 by which the application seeking recall of ex-parte order dtd. 21/9/2014 has been dismissed is unsustainable in law and therefore after setting-aside the order under challenge the petitioner be offered an opportunity to contest Misc. Case No. 8 of 2013 on merits.