Santokh Singh vs Surinder Kaur and Others

Harmohinder Kaur Sandhu, J.—Surinder kaur wife of Santokh Singh the present revision Petitioner filed an application u/s 125 Code of Criminal Procedure in her own behalf and on behalf of her minor son Baljinder Singh claiming maintenance. The application was decided by Shri P.S. Virk, Judicial Magistrate 1st Class, Nawan shahr vide his order dated 12.3.1989 whereby a sum of Rs. 100/- per month was granted as maintenance to the minor child but application on behalf of Surinder Kaur, the female spouse was dismissed. Aggrieved by his order Surinder Kaur preferred a revision petition which was decided by Shri H.C. Modi, Additional Sessions Judge, Jalandhar vide his judgment dated 4.2.1991. The Revision Petition was accepted and a sum of Rs. 200/- per month was granted as maintenance to Surinder Kaur from the date of the application. Maintenance amount allowed to the minor child was also enhanced to Rs. 150/-per month from the date of the application. Dissatisfied with this judgment Santokh Singh has filed the present revision petition.

The main grouse of the Petitioner is that he was residing in village Majari, District Hoshiarpur but no notice was given to him of the revision filed by the Respondent. No summons were sent to the Magistrate within whose jurisdiction he was residing for getting his service effect. The well reasoned order of the Trial Court was reversed without affording him an opportunity of being heard.

I have heard the counsel for the parties and have perused the record of the Revisional Court.

The Revision Petition was entertained on 3.5.1989 and notice was ordered to be issued to the present Petitioners. There is only one report of the Process Server on the record which is to the effect that Santokh Singh was informed of the case pending against him but he refused to accept service. This report is made by one Process server in the court premises at Nawanshahar and it was attested by Additional Senior Sub Judge, Nawanshahr. There is nothing on record to show as to how the summons were sent to Nawanshahr when the Petitioner was a resident of District Hoshiarpur. The case was, thereafter, adjourned many times and the presence of the counsel for the parties was noted. On 3.1.1991. when the case was actually taken for hearing it was found that neither the present Petitioner had been served nor he had engaged any counsel. The court, therefore, passed an order that service of the Respondent be got effected by making proclamation through beat of drum and by way of affixation of summons for 21.1.1991. There is no report of any process server on the file to the effect that any proclamation was made in the village of the Petitioner by beat of drum but on the basis of report made on the file by some one, exparte proceeding were taken against Santokh Singh. The case was heard in his obsence and the impugned order was passed.

The record of the case shows that no proper service was effected on the Respondents. The report of the refusal was not accepted by court passing the impugned order and that is why a fresh process was ordered. Section 67 of the Code of Criminal Procedure relates to the service of summons outside the local limits. In such a case the court shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides or is to be served there. Where a person summoned cannot be served by due diligence then u/s 66 of the Code, the serving officer shall afix one of the duplicate of the summons to some conspicuous part of the house in which the person summoned ordinarily resides. In the instant case the summons were neither served on the Petitioner personally nor a copy of the summons was affixed at conspicuous place outside his house, although a specific order was made by the court to that effect. The Petitioner had thus no knowledge of the Revision petition pending against him. The irregularity in the service of the summons on the Petitioner, in the facts of this case has clearly caused serious prejudice to him, as that an order had been passed against him allowing maintenance to the wife by reversing the order passed by the Trial Court and the Petitioner was not given any opportunity to place his case before the court. This has occasioned the failure of justice and the present Revision Petition is to be allowed on this ground alone.

As a result I accept the Revision Petition set aside the impugned order of the learned Additional District Judge, Jalandhar dated 4.2.1991 and direct the Court to decide the Revision afresh in accordance with law after hearing the parties. The parties through their counsel are directed to appear before the learned Sessions Judge, Jalandhar on 24.2.1992 who may hear the case himself or may entrust the same to some other court of competent jurisdiction.