Ram Chander vs State of U.P. and Others

V.P. Mathur, J.—Ram Chander is the husband of opposite party No. 2 Smt. Champa Devi and father of opposite party No. 3 Usha Devi. This fact is not disputed. Proceedings u/s 125 of the Code of Criminal Procedure had been started by the two ladies against Ram Chander. The case was registered as Criminal Case No. 582 of 1985 and it was pending before the IV Munsif Magistrate, Varanasi.

On 2-6-1986 the present revisionist''s application for stay was taken up. The order passed by the learned Munsif Magistrate was to allow this petition on payment of costs and on further condition that he pays all previous costs also within one week. With this condition, the written statement was ordered to be accepted on the record. The order-sheet shows that the next date fixed was 11-6-1986. The contention of the revisionist is that his counsel however informed him that the next date fixed in this case was 24-6-1986 and he was never informed of 11-6-86 as the next date. The result was that he did not appear on 11-6-1986 when a part of the hearing was made and on 12 6-1986 when the judgment was delivered. He however appeared on 24-6-86 and moved an application for setting aside the ex-parte order dated 12-6-1986. Notices were issued and ultimately the learned Magistrate by his order dated 18-10-1986 allowed his petition on condition that he pays within one week to the other side all the costs levied upto now.

Against this order, the present opposite parties went up in revision and Mr. Shripal Singh, IV Additional Sessions Judge, Varanasi by his order dated 20-3-1987 allowed that revision holding that a person against whom an order of maintenance is proposed to be made, if he is served with notice of the petition and appears in Court, he cannot be said to be wilfully avoiding service and wilfully neglecting to attend the Court and if an order awarding maintenance allowance is made by the Magistrate in his absence, it cannot be reviewed by the Magistrate. Reliance was placed on a Calcutta case of Osman Gani Vs. Tahurannessa Begum, . A Single Judge of that Court was of the view that the proviso was not attracted to cases where the opposite party having been served with notice appears in Court, proceeds to contest the application, but does not appear on the last date when evidence is recorded. The Court was referring the Section 488(6) of the Old Code which is equivalent to the present Section 126 of the new Code.

I have very carefully considered Osman Gani''s case and I am of the view with all respects to the learned Judge, who decided that case, that his view is not correct. The view that the proviso is attracted only to cases where the opposite party cannot be made to or does not attend the Court at all, does not appear to be sound, because the second part of the proviso does not put any suck, limitation, and obviously an ex-parte order can be set aside if sufficient cause is shown There can be no distinction between a case in which the applicant does not attend the Court right up from the very beginning and a case in which he attends on some dates in the beginning and then absents himself. There is specific provision for the restoration of such a case and setting aside of the ex-parte order u/s 126(2) and its proviso ; and there is no distinction or limitation made regarding the application of this proviso to any specific case. In my view, therefore, the learned Magistrate was justified in setting aside the ex-parte order that he had earlier passed and the order made by Sripal Singh, IV Additional Sessions Judge, Varanasi on 20-3-1987 while he was hearing Criminal Revision No. 10 of 1987 cannot be said to be a sound order.

The revision is, therefore, allowed. The order dated 20-3-1987 passed by the IV Additional Sessions Judge, Varanasi is set aside and the order passed by the IV Munsif Magistrate, Varanasi on 18-10-86 is restored, with this modification, that the costs as directed by the order dated 18-10-1986 passed by IV Munsif Magistrate, Varanasi shall be paid within one month of the receipt of the record of this case in the Court below and if this is not done, then the order setting aside the ex-parte order shall stand automatically vacated.

The office shall forthwith send the record back to the Court of the learned Munsif Magistrate for further action in the matter.