Paramjit Singh vs Amarjit Kaur Minhas

G.S. Chahal, J. (Oral)

Vide order dated 1911985, passed by the Judicial Magistrate I Class, Jullundur, maintenance at the rate of Rs. 500/ p. m. u/s 125, Cr. PC was allowed to the respondentwife, Smt. Amarjit Kaur. In those proceedings, an application was moved by the husband, revisionpetitioner through his attorney, Sh. Har Parkash Singh for setting aside the ex parte order. Vide the impugned order dated 1551985, the said application was dismissed by the Magistrate on the sole ground that the husband could not file an application for setting aside the exparte order through his attorney. That order is under challenge in this revision.

Proceedings u/s 125, Cr. PC are quasi civil proceedings. Since the husbandpetitioner was himself staying in Canada, he could not personally appear and prosecute the maintenance proceedings. There was no legal bar to his right for applying through his attorney to set aside the ex parte order of the Magistrate. I am of the view that the learned Magistrate had fallen in a legal error in dismissing the application for setting aside the exparte order on this sole ground.

The learned Magistrate has not decided the other matters in controversy, whether the husbandrevisionpetitioner had been properly served in the case or not and whether the mode of service was proper. The remand of the case in that situation will only mean lengthening of the maintenance proceedings. Every person has a right of being heard. Justice can be done between the parties by setting aside the exparte order and giving an opportunity to the revision petitioner to contest the maintenance proceedings, subject to his paying the entire arrears of maintenance fixed under the order dated 1911985 passed by the learned Magistrate which shall be treated as interim maintenance. I hereby accept the revision and direct that the ex parte order dated 1911985 against the petitioner shall stand set aside, on the condition that on or before the next date fixed for hearing before the Magistrate, i.e. 29111991, the husbandpetitioner shall deposit entire arrears of maintenance which will become due till 19111985 at the rate of Rs. 500/ p.m., fixed vide order dated 19885 and this amount shall be deemed to be paid towards interim maintenance. In case of default of the husband in making payment, the impugned order will stand intact. Pending the maintenance proceedings before the Magistrate, the husband petitioner shall continue paying Rs. 500/ p. m. to the respondentwife as interim maintenance. The revision stands disposed of accordingly.