R.V. Arunachala Thevar vs Chinnammal

Somasundaram, J.—On 6th December, 1969, an ex parte order for maintenance was passed against the petitioner. 1 year and 23 days thereafter, he filed an application under S. 488, CI. 6, of the Criminal Procedure Code, for setting aside this order, averring therein that he became aware of it only then. The court below dismissed his application, stating that it was barred by time since it was presented three months beyond the date of the order. The correctness of this order is now canvassed in this revision.

The proviso to Cl. 6 of S. 488, Crl. P.C. states that if the Magistrate is satisfied that the husband or father is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. It further states that any order so made may be set aside for good cause shown on application made within three months from the date thereof. The petitioner contends that the period prescribed under the proviso to S. 488(d) commences to run, not from the date of the order awarding maintenance, but only from the date of knowledge of the said order. The section clearly states that such applications should be made within three months from the date thereof, and it does not contain any reference to any knowledge of any such order. For the purpose of fixing the period of limitation, if the Legislature is fixing the period in certain matters from the date of the knowledge of any particular order, it specially provides to that effect. There is no such provision in CI. 6 of S. 488, Crl. P.C.

In A.S. Govindan Vs. Mrs. Margaret Jayammal, it was held that the period of three months does not mean ''three months from the date of knowledge of the order'', but that it commences from the date of the order itself. This view has been taken in Hari Singh Ishar Singh Jat v. Mst. Dhanno Hari Singh (1962) 2 Cri. L. J. 581 and In Hyder Khan v. Safoora Bee 1967 M. L. J. Cri. 21. The contrary view has found support in Zohra Begum alias Aysha Begum Vs. Mohamed Ghouse Qadri Qadeeri and Another, The ratio of this decision is that where the rights of a person are affected by the order and limitation is prescribed for the enforcement of the remedy by the person affected as commencing from the making of the said order, the making of the order must be understood in a just and pragmatic way and construed to refer to the date of either actual or constructive communication of the said order to the party concerned. Reliance is also placed upon the decision In Muthiah Chettiar v. Commissioner of Incomes tax (1951) 1 M. L. J. 417, Swaminathan v. Lechmenan 59 M. L. J. 585, and Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, , for the position that limitation should commence only from the date of knowledge of any order. Rajamannar, C.J., in Muthiah Chettiar v. Commissioner of income tax (1951) 1 M. L. J. 417 had observed:

If a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have had the knowledge of the order.

The order in that case related to an order passed by the Commissioner of income tax under S. 33(a)(2) of the Indian income tax Act, 1922. This order was communicated to the applicant. Therefore, it was held that the date of the order does not mean the date when the Officer passed the order, but the date when such order was either communicated to the party or the date when it was pronounced or published in such manner that the party must be deemed to have had notice of it or the date of such pronouncement of publication. The case in Swaminathan v. Lechmenan 59 M. L. J. 585, is one which related to an order passed under the Registration Act. The Supreme Court, in Haris Chandra v. Deputy Land Acquisition Officer A. I. R. 1981 S C. 1500 was dealing with the case of an award under the Land Acquisition Act. There it was held that ''the date of the award'' used in the provision of that Act would mean ''the date when the order was either communicated to the party or was known to him either actually or constructively'' and that as such under these circumstances it would be unreasonable to construct the words "from the date of the collector''s award'' used in the proviso to S. 18 in a literal or mechanical way. Thus, in all these cases, the ratio was that the knowledge of the parry affected by actual or constructive communication thereof should be the sine qua non for the operation of limitation. Further those orders were passed by administrative authorities.

But, an order under S. 488, Cr. P.C. is an order pronounced openly in Court by the Magistrate. The Court acts in public. The Judge gives notice of the pronouncement and does pronounce judgments in open Court. Even a party who is absent has thus an opportunity of knowing the order or about it. Thus, there is constructive communication thereof to the concerned party. Since it is pronounced in Court, the party should be presumed to have knowledge of the pronouncement even on the date when it is pronounced in public. This is the distinction between the order passed by Court and the orders passed by an administrative authority. The latter makes its order and communicates it subsequently in the manner prescribed by law. But, in the case of a court, everything is done in public and the parties should be presumed to have knowledge of the pronouncement on the date when it is made. Therefore, there is no further need for a personal communication to the concerned party.

Thus where the limitation law makes knowledge of the order of a Court relevant, it says so. It is not said so in Cl. 6 of S. 488, Cr. P.C., and from the language used in the proviso, we have to take it that limitation runs from the actual date of the order and not from the later date on which the affected party became aware of the order.

The petitioner''s application is thus barred by limitation The dismissal of his petition is correct. The revision fails and the same is dismissed.