Kehr Singh Basra vs Jasbir Kaur

B.S. Yadav, J.

The brief facts leading to this petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as code) read with Article 227 of the Constitution of India are that present respondent Jasbir Kaur had filed an application under section 125 of the Code against her husband Kehar Singh, who at the time of filing of the application was residing in Canada. Notices were sent to Kehar Singh by registered post but the registered covers or the acknowledgments were not received back. The learned Judicial Magistrate Ist Class, Jullundur who was trying the application, ordered that the service of Kehar Singh be affected by publication of notice in a newspaper (i.e. Nawan Zamana). When Kehar Singh did not appear on the date of hearing inspite of publication of notice in the newspaper, he was proceeded against exparte. After recoding the evidence, the learned Magistrate allowed Rs. 500/ P.M. as maintenance to Jasbir Kaur vide his order dated 9.5.1980.

One Ram Singh alleging himself to be attorney of Kehar Singh, Filed an application on 1.4.1982 for setting aside the above exparte order. In the application he alleged that he came to know about the said exparte order on 26.3.1982 and Kehar Singh had no knowledge about it upto that time.

The said application was contested by Jasbir Kaur. She took up the plea that Ram Singh had no locus standi to file the said application nor the same was maintainable. Vide order dated 13.5.1982 the learned Magistrate dismissed the said application filed by Ram Singh as attorney of Kehar Singh filled revision petition which was heard by Sessions Judge, Jullundur. He did not find any merit in that petition and dismissed the same. Ram Singh has now filed this petition for setting aside the order passed by the learned Sessions Judge. In this petition many points were taken but it is not necessary to go into those grounds because the learned counsel for the respondent raised a preliminary objection to the effect Ram Singh as attorney of Kehar Singh could not file the application for setting aside the exparte order passed under section 125 of the Code of Criminal Procedure, the revision petition or the present petition. I am of the opinion that the said argument has force.

It was not disputed before me by the learned counsel for the petitioner that proceedings under section 125 of the Code are criminal in nature and are governed by the provisions of the Code. The section alongwith connected ones has been incorporated in the selfcontained chapter 9 of the code. The detailed provisions contained in section 125 provide both the right and the prerequisite for an order of the maintenance. Section 126 lays down the procedure to be followed. It becomes necessary to reproduce here the relevant provision of section 126.

"126(1) xxx xxx xxx

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summonscases :

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or wilfuly neglecting to attend the Court the Magistrate may proceed to her and determine the case exparte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) xxx xxx xxx"

A perusal of the subsection (2) of section 126 of the Code and the proviso appended to it would show that evidence in proceedings under section 125 of the Code has to be recorded in the presence of the person against whom the order for payment of maintenance is proposed to be made. If the personal attendance of such person has been dispensed with then the evidence is to be recorded in the presence of his pleader. The said subsection does not provide that the person against whom an order for payment of maintenance is proposed to be made, can put in appearance through some attorney than the pleader. The proviso empowers a Magistrate to hear the determine the case exparte if such person is willfully avoiding service or neglecting to attend the Court. The said proviso further lays down that exparte order made by the Magistrate may be set aside for good cause shown on an application made within 3 months from the date thereof subject to such terms as to the payment of costs to the opposite party as the Magistrate may think proper. The clear meaning of this latter portion of the proviso is that only that person against whom exparte order of maintenance has been made, can file application for setting aside such order and if good cause is shown then the Magistrate has been empowered to set it aside subject to such terms including the terms as to payment of costs to the opposite party. If some person other than the person against whom an order for maintenance has been made, files an application for setting aside the exparte order, though as attorney of such person, costs cannot be imposed upon him nor he would be liable to pay costs. Moreover, the period of 3 months within which the application for setting aside the exparte order has to be made is to be reckoned from the date of order has to be made, is to be reckoned from the date of order, and if the service of notice was not proper, then from the date of knowledge of the person against whom the order of maintenance has been made. Therefore, only such person can be in a position to say when he acquired the knowledge about the order passed against him.

The learned counsel for the petitioner has not been able to point out any provision in the Code where a complainant or an accused can appear through an attorney other than his pleader.

For the foregoing reasons I am of the opinion that only the person against whom an order for payment of maintenance has been passed, can file an application for setting aside the exparte order. Consequently, Ram Singh was neither competent to file an application on behalf of Kehar Singh for setting aside the exparte order of maintenance passed in favour of Jasbir Singh nor he was competent to file the revision petition. For the same reasons it is held that he is not competent to file the present petition. Consequently present petition fails and is dismissed.