Madras High Court
A.S. Govindan vs Mrs. Margaret Jayammal on 31 August, 1949
Equivalent citations: (1949)2MLJ557
ORDER Somasundaram, J.
1. On 7th September, 1948, an ex parte order for maintenance was passed against the petitioner. He filed an application on 4th January, 1949, to set aside that order and also contested the quantum of maintenance. Under the proviso to Clause 6 of Section 488, Criminal Procedure Code, an ex parte order may be set aside for good cause shown on application made within three months from the date of the order. This application which was filed on 4th January, 1949, is undoubtedly more than three months from the date of the order. But it is contended by the learned Counsel that the period of three months means three months from the date of the knowledge of the order. In short he wants the word " knowledge " to be introduced which is not there. I do not see any reason why the section should be read with the word "knowledge" which is not there. If the intention of the Legislature was that it should be three months from the date of the knowledge of the order it would have said so. I therefore agree with the lower Court that the application wais filed out of time and is liable to be dismissed.
2. Another fact urged by the learned Counsel is that he has shown how he has to pay certain debts and this circumstance must be taken into consideration in assessing the income of the petitioner. The circumstances which he alleges existed even at the time of the order. It is not as if they came into existence after the order was passed. Change in the circumstances means change in the existence of circumstances and not change in proof of circumstances. The lower Court was therefore right in rejecting the petition. I see therefore no reason to interfere with the order of the lower Court.
3. The petition is dismissed.