Paras Nath and Another vs State and Another

M. Wahajuddin, J.—It would appear that proceedings u/s 133, Code of Criminal Procedure, directed against the applicants were decided finally on 13th February, 19 0, ex-parte. The applicants, as per averment made in the application and affidavit, came to know of the ex-parte order in question on 5th March, 1980, and thereafter moved the Sub-Divisional Magistrate, but the Sub-Divisional Magistrate refused to interfer, holding that he had no jurisdiction to review his earlier order. A revision was then filed. The copy of the judgment in revision is annexed. The VIth Additional Sessions Judge, Etawah, held that the revisionist failed to show sufficient reasonable cause for condonation of delay and the delay cannot be condoned. It, therefore, rejected the revision without entering into the merits of the case. The view taken by the learned Additional Sessions Judge is that in view of Article 131 of the Limitation Act, 90 days limitation is provided, and as order was of 13-2-1980 while the revision was filed on 3-6-80 it was time barred. The learned Additional Sessions Judge has further observed that the revisionist was very well in know of the order on 5-3-1980 and the limitation having not expired, the revision should have been filed within 90 days of the order. It was further observed that the subsequent order was also passed on 10-4-1980, which left ample time for filing the revision within 90 days of the order. The case of Hari Singh v. Smt. Bakhtwari 1970 AWR 329 was cited before the Additional Sessions Judge and has also been cited here. It was a case of grant of maintenance u/s 488, Code of Criminal Procedure (old). The implication of proviso to Sub-clause (6) was considered. The proviso lays down that if the Magistrate is satisfied that the other side is wilfully avoiding service or neglects to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and may set aside the ex-parte order within three months from the date thereof, i. e., the date of the order. In the aforesaid case it has been held that the limitation should have been reckoned from the date of the knowledge to the aggrieved party. The distinction drawn by the Additional Sessions Judge is not convincing. The Additional Sessions Judge distinguished the case on consideration that the knowledge itself was beyond 90 days. I think, the ruling could not be distinguished on such consideration. The proposition laid down is that the limitation in such cases is to be counted not from the date of the order, but from the date of knowledge, and that principle will hold good for this case also. In the Division Bench case of National Thermal Power Corporation v. Raghunath Prasad AIR 981 All 344, which was a case under the Land Acquisition Act, it was held that where judgment is pronounced in absence of parties, the expression ''the date of the award used in proviso (b) to Section 18 of the Land Acquisition Act'' would mean the date when the award is known either actually or constructively. The Supreme Court cases of Raja Harish Chandra v. Dy. Land Acquisition Officer 1961 AWR 500 and State of Punjab Vs. Mst. Qaisar Jehan Begum and Another, were relied upon. The aforesaid cases related to the land acquisition proceedings. Similar view was taken in another case Madan Lal Vs. State of U.P. and Others, . That case related to Indian Forest Act and Section 11 of the Act provided limitation of three months from the date of the order for filing appeal. Yet it was held by the Supreme Court that the limitation would run from the date the aggrieved party came to know of the order and not from the date the order was actually passed,

In fact, the crux of the matter in such situation is to determine whether the party concerned himself was at fault and lack of knowledge can be attributed to any such fault. If the party is not at fault, natural justice would require that he should be heard in revision, when filed within 90 days the knowledge of the order. Unfortunately, any copy of the order of the Magistrate is not annexed and this Court cannot enter into a detailed enquiry whether there was lack of knowledge and, if so, whether it is attributable to any fault of the applicant himself. The Sessions Judge disposing of the revision also did not enter into any enquiry in that respect and had proceeded on the assumption that the knowledge was on 5-3-80 and rejected the revision holding that the limitation would still run from the date of the order and not from the date of knowledge. This has resulted into failure of justice. It would, therefore, be desirable simply to quash the order dated 29-9-1980 of the VI Additional Sessions Judge, Etawah, with a direction that he may proceed to dispose of the revision afresh in the light of my aforesaid observations as to first determine whether there was a lack of knowledge of the order and, if so, whether it is attributable to any fault of the revisionist and, if not, so also dispose of the revision on merits according to law.

The application u/s 482, Code of Criminal Procedure is partly allowed and the order dated 29-9-1980 of VI Additional Sessions Judge, Etawah, only is quashed and the Additional Sessions Judge or competent Court where the Revision is transferred is directed to dispose of the revision, as aforesaid, in accordance with law.