Rakesh Kumar vs Anju

G.S. Chahal, J.—Rakesh Kumar has come up in revision against the order dated 16-5-1991, passed by Sub Divisional Judicial Magistrate, Moga dismissing the application of the petitioner u/Sec, 126 Cr.P.C.

Brief facts leading to the present revision may be noted : Smt. Anju, wife and Gautam (minor) son of the revision-petitioner brought an application u/s 125, Cr.P.C, for the grant of maintenance. Service on the petitioner was effected through publication for 27-11-90 and the case was fixed for ex parte evidence for 4-2-91. The petitioner sent a telegram to the Court for that date, making a request for an adjournment. This prayer was not allowed and the proceedings were concluded. Maintenance amount of Rs. 400/- for Smt. Anju and Rs. 150/- p.m. for Gautam was allowed. On 21-3-1991 the petitioner moved an application for setting aside the ex parte order, on the ground that he had not been properly served, and it was only on 7-1-91 that he learnt about the pendency of the maintenance proceedings when Smt. Anju moved an application to the Family Court at Kanpur and immediately thereafter, he had sent a telegram.

The act of the petitioner in sending a telegram to the Court may not be fully justified and obviously cannot amount to a proper representation, but it is settled principle of law that a person should be heard. Since the exparte order had been made on 27-11-90, the petitioner could have only prayed for setting aside the exparte order by putting appearance on 4-2-1991 by showing that he had not been properly served. He had, however, moved this application after the proceedings had been finalised. The petitioner has shown his bona fide and has cleared the arrears of maintenance upto 3-6-1991. Considering all these facts and to do justice between the parties, I am inclined to accept his statement that he had received information of the proceedings soon after an application was moved by Smt. Anju in the Family Court at Kanpur. I hereby accept the revision and set aside the exparte order dated 4-2-1991, subject to the condition that on the next date of hearing before the learned Judicial Magistrate, the petitioner shall pay the entire amount of maintenance which may become due from 4-6-1991 to 3-1-1992. The original file be restored and put up before the learned Magistrate on 30th January 1992. Pending the proceedings before that Court, the petitioner shall continue paying Rs. 400/-p.m. to Smt. Anju and Rs. 150/- p.m. to the minor, as interim maintenance. The trial Court will conclude the proceedings within six months each party will be allowed three adjournments, of 15 days each.