Ghulam Mohd. vs Mst. Rasoolan

B.A. Khan, J.—rocedural tangles some times complicate issues instead of solving (them). The result is delayed justice if not denial of it.

Should rigid resort to procedure be allowed to defeat the very purpose for which it stands laid down? I am afraid-Not-in an era of substantial

justice.

This is a reference made by the learned Sessions Judge, Udhampur recommending setting aside of ex parte order dated Nov. 20, 1989 passed

by the trial court awarding maintenance allowance of Rs. 340/- per month to respondent-petitioner. The reason advanced is that the trial court had

not conformed to the procedure laid down in Sections 73 and 74 of the Criminal P.C. while summoning the petitioner-respondent.

From the record it appears that the respondent herein made an application invoking Section 488, Cr. P.C. claiming maintenance. The matter

was taken cognizance of by the learned Chief Judicial Magistrate, Udhampur on March 1, 1986 and summons were issued against the petitioner

herein. When repeated summons evoked no response, he was set ex parte vide order dated August 20, 1986. Thereafter, respondent-wife was

allowed to adduce evidence in support of her claim culminating in ex parte order dated November 7, 1986 awarding compensation of Rs. 340/-

per month to her.

The husband like all husbands of his class would not allow matters to rest at that and he filed an application before the trial court seeking setting

aside of the ex parte order passed on the ground that he had not been served and that he had come to know about the order impugned only during

the execution proceedings. The learned C.J.M. rejected his application by his order dated Nov. 20, 1989 on the twin grounds of his application

being time-barred and also for his deliberate absence despite service.

Aggrieved by this he preferred a revision petition before the learned Sessions Judge, Udhampur that is how this reference recommending the

setting aside of the order of the trial court dated November 20, 1989.

I have examined the two orders passed by the courts below and have also considered the record before me. What is in issue is the mode of

service. The learned Sessions Judge feels that since the mode and procedure prescribed in Sections 73 and 74, Cr. P.C. has not been followed,

order dated November 20, 1989 can't be allowed to stand. What of respondent-wife who goes packing to 1986 position and back to square one.

Chapter VI of Cr. P.C. deals with, ""Processes to compel appearance"". Sections 68 to 74 provide for various modes and agencies for issue and

service of summons in different eventualities. The spirit and purpose behind provisions falling under this chapter is to effect service and to compel

appearance of accused/respondents. In what form the summons shall issue and through which agency is not of very crucial importance as against

the factum of service. Whether the summons are issued in duplicate or triplicate, and through Magistrate, a police officer or a public servant is just

a means. The end is whether these stand served and the concerned is informed about the existence of a cause against him.

The relevant provisions on which the learned Sessions Judge has placed reliance to invalidate order dated 20-11-1989 require to be

appreciated in this perspective.

Section 73 reads as under:--

When a court desires that a summons issued by it should be served at any place outside the local limits of its jurisdiction, it shall ordinarily send

such summons in duplicate to the Magistrate within local limits of whose jurisdiction the person summoned resides or is to be there served.

A bare perusal of the provision would show that it leaves option open to the court to achieve the ultimate end of effecting service. Words ""desires

and ""ordinarily"" are indicative of the legislative intent in this regard. By no norms of interpretation can it be suggested that a court has no way to

reach a person living outside its jurisdiction limits, other than the one prescribed in the section. Placing any such interpretation would render the

provision redundant in many situations. By way of one instance take a place where there is no Magistrate available and yet falls outside the

territorial jurisdiction of the court. Is the court helpless in such a situation? What bars it from serving the summons through a police Officer or any

other public servant for that matter. And if it so does, would the action become invalid merely because the letter of the procedure has been

deviated from. Such a view would be illogical. So long as a person living outside the territorial limits of a court is served notice and informed about

a cause pending, it is immaterial whether he is so served through a Magistrate, a police Officer or a Public servant. The same should hold true of

the form in which the summons are issued.

The reliance placed by the learned Sessions Judge on Section 74 is equally misplaced. All that Section 74 talks about is the admissibility in

evidence of an affidavit sworn in by an Officer who has served the summons, but is not present at the hearing of the case, and the correctness to be

attached to his statement. By no logic, can it be said or suggested that the only proof of service on persons outside the territorial limits of a court

should be the one prescribed therein. To do so would be to bar the court from assuming satisfaction on any other proof of service which may be

more solid and concrete. Be that as it may, the learned counsel for the petitioner-husband was at pains to defend the recommendation made by the

learned Sessions Judge. His line of argument was true to the pattern suggesting that non-observance of the procedure laid down in sections

Sections 73 and 74, Cr. P.C. was bound to render ex parte order invalid. He relied upon Meenakshi Ammal Vs. Somasundara Nadar, in support

of his contention.

I have gone through these judgments which are distinguishable on facts from the present case. The Madras judgment deals with a different

aspect altogether. It nowhere holds that non-observance of procedural requirements as contemplated in Sections 73 and 74 of the Criminal P.C.

would of necessity vitiate an ex parte order. Similarly, in Patna case it was found on facts that no summons as required Under Sections 68, 69 and

70 of the Criminal P.C. had been served leading to setting aside of ex parte order.

I, therefore, hold that an ex parte order is not liable to be set aside in all events on mere non-observance of procedural requirements as

contemplated in Sections 73 and 74 Cr. P.C., moreso, in a situation where the trial court feels satisfied that service had in fact been effected. It is a

different thing if a good cause is otherwise shown for its setting aside.

In the present case, I find that the summons were served on the petitioner-husband through SHO of police station Batote. I also find that he

has signed a receipt therefore on the back of the copy of summons. Upon this if the learned Chief Judicial Magistrate, Udhampur concluded that he

had deliberately absented himself despite service, there should have been no reason to doubt the satisfaction recorded by him. The findings

recorded by the learned Sessions Judge that it was not satisfied in the summons as to whom it was addressed and that it did not bear any

authentication of its service on the respondent is belied by the record. It appears that the learned Sessions Judge, Udhampur did not deem fit to go

into the record. Had he done so, he would have discovered that on the back of the summons there is an endorsement recorded for the SHO

concerned. It also bears the signature of the petitioner-respondent, in compliance of receipt of summons, which tallies with the signature borne on

the affidavit sworn in by the petitioner-respondent in support, of application seeking setting aside of ex parte order. It is also evident from the

record that the petitioner-respondent observed complete silence on this aspect of the matter in his application dated May 26, 1988 in which he has

set up a different story of being engaged in business somewhere in Srinagar. In this view of the matter there remains hardly any scope for doubt

that the petitioner-respondent was duly served, as has been held by the learned Chief Judicial Magistrate, Udhampur.

The learned Session Judge, Udhampur has also erred in dealing with the question of limitation. Proviso to Sub-section (6) of Section 488 Cr.

P.C. reads as follows :--

Provided if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the court, the Magistrate may proceed to hear

and determine a case ex parte. Any order so made may be set aside for a good cause shown, on an application made within three months from the

date thereof.

As would be evident from the very terms of this proviso, the period of limitation prescribed in a reference to an exparte order is three months from

the date of passing of such ex parte order. In the very nature of things an ex parte order is passed at the back of the respondent who can have no

knowledge about it. Therefore, the Legislature in its wisdom has prescribed a period of limitation of three months for setting aside such ex parte

order from the date such order is passed. The period of limitation so prescribed is absolute in terms and introducing any other element of

knowledge into it would be amounting to rewriting the terms of the provision. I derive support for this view from the judgment of Madras High

Court, reported in A.S. Govindan Vs. Mrs. Margaret Jayammal, .

Though the learned counsel for the petitioner respondent has drawn my attention to the judgment of the Hon'ble Supreme Court, reported in

Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, wherein it is held that the date of the award under the

Land Acquisition Act cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his

office and that it must involve the consideration of question as to when it was known to the party concerned, either actually or constructively. Going

by the facts of the case, it becomes clear that the Hon'ble Supreme Court was dealing with the land acquisition matter in which no notice of the

award had been given to the aggrieved person. In the peculiar circumstances and facts of the case, it was held that the date of making of the order

must mean either actual or constructive communication of the said order to the party concerned.

I am afraid, the principle laid down in the case referred to cannot be made applicable to the proviso of Sub-clause (6) of Section 478 Cr. P.C.

which specifically prescribes a period of three months for setting aside an ex parte order from the date of such order. As a matter of fact, Section

488 Cr. P.C. is a self contained provision and takes care of all eventualties including the one where a respondent wilfully avoids service or neglects

to attend the court. It empowers a Magistrate to determine his case ex parte and also provides a remedy of setting aside such ex parte order,

though within a period of three months from the date of such ex parte order. Since the period of limitation prescribed is in reference to the ex parte

order, it can, by no norms of interpretation be said to run from the date of knowledge.

Viewed thus, I reject the recommendation made by the learned Sessions Judge, Udhampur and uphold the order passed by the learned Chief

Judicial Magistrate, Udhampur dated November 7, 1986. This reference accordingly stands disposed of. The record be returned back to the

concerned courts.

Before parting with the matter, I deem it fit to observe that there is no dearth of cases where husbands normally resort to delaying tactics to

frustrate the maintenance claims of deserted wives. The new horizon of substantial and speedy justice and fair-play do not countenance a rigid

resort to technicalities. Adopting such a course is bound to furnish a long rope to those who wilfully avoids the service of the courts and wilfully

neglects to attend the courts, only with a design to leave the deserted wives high and dry. A new outlook is called for by the courts to grant relief to

the needy persons lest the faith of the people is shaken in the great institution of the Judiciary.