Md. Sabir Ali vs Tahera Khatoon

Gitesh Ranjan Bhattacharjee, J.—On 12.2.92 I passed an order disposing of the revisional application after hearing the learned Advocate for the opposite party and after perusing the records. Obviously that order was passed on merits although none appeared on behalf of the petitioner on call. Subsequently the petitioner filed the present petition for recalling the said order. It is argued by the learned Advocate for the petitioner that although the earlier order dt. 12.2.92 was passed on merits, this Court has the power to recall the said order and rehear the matter. In support of this submission he was referred to the decision of a Single Judge of the Bombay High Court in Nazeem Vs. Asstt. Collector of Customs and another, as well as a decision a of Single Judge of this Court in Bhudeb Mondal v. Lakindar Mondal 1978 (2) CLJ. On the other hand the learned Advocate of the opposite party has attracted my attention to the Division Bench decision of this Court in Narayan Chandra Dey v. The State of West Bengal reported in 1989 C. Cr. L.R. (Cal.)105 where the Division Bench relying on a decision of the Supreme Court in State of Orissa Vs. Ram Chander Agarwala and Others, held that such an order cannot be recalled in view of the provision of Section 362 Cr. P.C. Since this is a Division Bench decision, this is binding on me more than the two other Singal Bench decisions referred to above. Moreover, on merit of the question also I respectfully agree with the decision of the Division Bench of this Court in Narayan Chandra Dey v. State of West Bengal (supra).

Another point also has been canvassed before me by the learned Advocate for the petitioner regarding the question of limitation u/s 126(2) Cr. P.C. The proviso to the said Section 126(2) says inter alia that where an ex-parte order of maintenance is passed u/s 125 Cr. P.C. the same may be set aside by the learned Magistrate for good cause shown on an application within three months from the date thereof. It has been submitted by the learned Advocate for the petitioner that this period of limitation of three months should be reckoned not from the date of the impugned order but from the date of the knowledge of the petitioner about the impugned order where such order was passed ex-parte as the petitioner had no knowledge of the same at the time when the order was passed. On this point the learned Advocate for the petitioner has referred to a decision of the Single Judge of this Court in Hemendra Nath Chowdhury Vs. Sm. Archana Chowdhury, in support of his contention that the period of limitation will be reckoned from the date of knowledge of the impugned order. The learned Advocate for the opposite party on the other hand has referred to a later Division Bench decision of this Court in Amal Kumar Guha v. State of West Bengal where the Division Bench on a reference on the point held that the plain grammatical meaning of the provisions contained in Section 126(2) Cr. P.C. is that such an application for setting aside an ex-parte order should be filed within three months from the date of the order itself and there is no scope within the limits of the language of the Section for the inference that such an application may be filed within three months from the, date of knowledge. It is needless to mention that this Division Bench decision of this Court settles the point. It has, however been submitted by the learned Advocate for the petitioner that in rendering this decision the Division Bench did not take notice of the earlier Single Bench decision of this Court in Hemendra Nath Choudhury v. Sm Archana Choudhury (supra). Even then I must hold that the later Division Bench decision of this Court is binding on me rather than the earlier Single Bench decision. Accordingly, I find no scope of recalling the earlier order passed by me on 122.92. The application for recalling the order disposed of accordingly.

Department is directed to supply certified copy of this order on priority basis to both the parties, if applied for.