Madhya Pradesh High Court
Manvendra Yadav vs Smt.Sarvesh on 14 May, 2015
1
Mcrc.9000.2014
Manvendra Yadav Vs. Smt. Sarvesh & Anr.
14.05.2015
Shri S.S. Raghuvanshi, Advocate, for the petitioner.
Shri Gagan Sharma, Advocate, for respondents.
Heard.
This petition under Section 482 of the Code of Criminal Procedure has been preferred invoking inherent powers of this Court for the following relief:
"By allowing this petition, orders impugned dated 23.07.2014 and 07.03.2013 passed by the learned courts below be set aside or opportunity may be granted to the petitioner for filing an application under Section 126(2) of the Code of Criminal Procedure after condoning the delay."
In nutshell, facts of the case are that one application under Section 125 of the Code of Criminal Procedure was preferred by the respondent-wife against the petitioner- husband for the relief of maintenance. Same was decided by the Judicial Magistrate First Class, Datia, in MJC No.27/12 vide order dated 07.03.2013. The order was passed ex parte against the petitioner and the petitioner was directed to pay an amount of Rs.1,500/- per month to respondent No.1 wife and an amount of Rs.800/- per month to minor daughter. That order was challenged by way of filing Criminal Revision which was registered as Criminal Revision No.39/14. But the same was also dismissed vide order dated 23.07.2014. Being aggrieved by the order passed by the revisional Court, this petition under Section 482 of Code of Criminal Procedure has been 2 Mcrc.9000.2014 Manvendra Yadav Vs. Smt. Sarvesh & Anr.
preferred.
The only point involved in this petition is whether without giving an opportunity of hearing such kind of ex parte order can be passed against the petitioner?
It is submitted by learned counsel appearing on behalf of the petitioner that revisional court in its order dated 23.07.2014, in para 10, has observed that no notice was served upon the petitioner. Registered notice sent to the address of the petitioner returned unserved with the endorsement that petitioner was not found present at the house. On these premises, trial court passed the ex parte order and proceeded accordingly. It was also observed that no application under Section 126(2) of Cr.P.C. was preferred to set aside the ex parte order before the trial court. Therefore, this point cannot be considered in revision petition and accordingly revision petition was dismissed.
It is further submitted by learned counsel that when opportunity of hearing was not provided to the petitioner and on the wrong notion it was presumed that notice was served, ex parte order was wrongly passed. It is also submitted that it was not necessary for the petitioner to file an application under Section 126(2) of Cr.P.C. before the trial court to set aside the ex parte order. But the illegality can be challenged by way of preferring criminal revision, therefore, the observation made by the revisional 3 Mcrc.9000.2014 Manvendra Yadav Vs. Smt. Sarvesh & Anr.
court was also wrong and thus the orders passed by the learned courts below be set aside. Lastly, it is also submitted by learned counsel for the petitioner that if petition is ultimately allowed then the petitioner is ready to pay the amount of maintenance as an interim measure from the date of passing of the order by this Court to the respondents.
Per contra, it is submitted by learned counsel appearing on behalf of respondent that orders passed by the learned courts below are well merited and no interference is required in them because even after service of notice when the petitioner did not appear before the trial court then the trial court had no option except to proceed ex parte against the petitioner.
Having regard to the arguments put forth by the learned counsel for the rival parties, entire record has been perused.
In para 10 of the order passed by the Revisional Court, it was clearly observed by it that registered notice was sent to the petitioner and the same returned unserved with the endorsement that petitioner was not found present at the house. In such premises, it could not be presumed that service was properly made.
The presumption provided under Section 27 of (The) General Clauses Act 1897 (Central) can be invoked if it is proved that notices were sent on the correct address of the 4 Mcrc.9000.2014 Manvendra Yadav Vs. Smt. Sarvesh & Anr.
petitioner. When a registered notice is tendered by a postman to the addressee and if he refuses to accept it, then the presumption of due and proper service can be drawn against the addressee and he can be imputed with the knowledge of the contents of the notice. But when the notice is not served and is returned and if there is no evidence to establish that the petitioner was responsible for return of the notice, presumption under section 27 of General Clauses Act cannot be drawn against the petitioner. In this case also, as discussed above, the notice returned back unserved, therefore, it cannot be held that proper service was effected on the petitioner.
In view of the aforesaid discussion, it is clear that ex parte order passed by the trial court was illegal because the same was passed without affording proper opportunity of hearing to the petitioner. It is against the principle of natural justice. In such premises, it was not necessary for the petitioner to move an application under Section 126(2) of Cr.P.C. for setting aside the ex parte order. In such circumstances, this petition is hereby allowed. The orders impugned passed by the courts below are hereby set aside. MJC No.27/12 is hereby restored to its original file for being adjudicated in accordance with law. Parties are directed to remain present before the Judicial Magistrate First Class, Datia (M.P.) on 16.06.2015. and in turn the trial court is directed to decide the application under 5 Mcrc.9000.2014 Manvendra Yadav Vs. Smt. Sarvesh & Anr.
Section 125 Cr.P.C. (MJC No.27/12) afresh after affording proper opportunity of hearing to both the parties.
Meanwhile, the petitioner is directed to pay awarded amount fixed by the trial court in the same ratio to the respondents as an interim measure from today. If the continuous succeeding two defaults are committed by the petitioner, in that event the petitioner will be liable to pay the amount as ordered by the trial court w.e.f. 07/03/2013.
A copy of this order be sent to the both the courts- below for information and necessary action.
(B.D. Rathi) Judge pd