S. Thulasingam vs Padmavathi Ammal

Sadasivam, J.—This is a petition to revise the order of the Second Presidency Magistrate in M. P. No. 1324 of 1961 in M. C. No. 906 of

1961 on his file, refusing to set aside the ex parte order for enhanced maintenance made against the petitioner. The petitioner is alleged to have

been served by registered post in an application filed by the respondent under S. 489 Crl. P. C. The only question for consideration in this petition

is whether it is proper service on Which the petitioner could be set ex parte on the ground that he wilfully avoided service or wilfully neglected to

attend Court. It has been held in several decisions that the service of summons by registered post on the person proceeded against under S. 488

Crl.P.C. Is not permissible under the Crl.P.C., and that in such a case the person cannot be proceeded against ex parte under the proviso to S.

488 (6) of the Crl.P.C. Vide Gurnam Singh v. Datto AIR 1950 E. P. 20, George v. Chacko AIR 1954 T. C. 116 and Ravappa v. Gurushanthan

W. A. A. AIR 1960 Mys. 198. Under S. 488 (6) Crl.P.C. an inquiry under Chap. XXXVI should be made in the presence of the respondent

unless his personal attendance is disposed with and the proceedings are conducted in the presence of his pleader. there is how ever a proviso to

the said sub-clause, that if, the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglects to attend the Court, the

Magistrate may proceed to beat and determine the case ex parte the mode of service of process to compel the appearance of a person proceeded

against under the provisions of the Crl P.C. either as an accused or other wise is found in Chapter VI. Part A of Chapter VI relates to summon

and it contains Ss. 68 to S. 74 as to how summons should be served. The mode of service by Registered post is not one of the modes mentioned

therein except in the single instance of summon to on incorporated company. Thus the petitioner could not be said to have been duly served in this

case, and he ought not to have been set ex parte. The learned Second Presidency Magistrate should have set aside the ex parte order at least

when the petitioner approached the Court with a request to set aside the ex parte order. It is unfortunate that he did not even enquire into the

matter but dismissed it summarily. The summons sent to the petitioner is not even in the correct form and it did not give the details of the

proceedings against the petitioner, In fact a witness summon appears to have been used wrongly in this case.

The ex parte order passed against the petitioner is therefore set aside. The Second Presidency Magistrate is directed to take the case on file and

dispose if according to law.