Orissa High Court
Kasinath Mohapatra vs Annapurna Panda @ Mohapatra on 14 February, 1989
Equivalent citations: I(1990)DMC335
JUDGMENT K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned Sub-Divisional Judicial Magistrate, Bhadrak, refusing to set aside the ex parte order of maintenance passed against the petitioner and in favour of the opposite party.
2. A few fact may be stated. The opposite party filed a petition under Section 125 of the Code of Criminal Procedure ('Code' for short) against the petitioner on 6-1-1983 in the court of the learned Sub-Divisional Judicial Magistrate, Bhadrak, alleging that while the latter was serving as Sub-Inspector of Police at Banta Police Station of Balasore district he married her in the month of Baishakh, 1970 according to the religious customs and thereafter they lived together and consummated the marriage. A daughter was also born of the wedlock on 15-6-1973. Some time later she came to her parent's house on a visit and as she could not return in time, the petitioner drove her out of the house. Since then she is living in her parent's house along with her daughter. She claimed maintenance of Rs. 300/- per month for herself, as well as for her daughter.
3. According to the orders passed by the learned Judicial Magistrate, it appears that notice was not served on the petitioner either through the police department or by registered post for some reason or other. On 19-11-1984, however, the following order was passed and the service of notice on the petitioner was treated as sufficient :
"19-11-84. x x Later P. A. back with a report that O. P. refused to receive the postal notices. Hence the service is sufficient. Put up on the date fixed for ex parte order."
On 7-1-1985 the case was transferred to the Court of the learned Judicial Magistrate who posted the case to 13-2-1985 for hearing. On 13-2-1985 the impugned ex parte order of maintenance was passed.
4. On 11-1-1988 and 12-2-1988 the petitioner filed two petitions under Section 126(2), proviso of the Code for setting aside the ex parte order of maintenance. The earlier petition was dismissed as not pressed on 2-2-1988 because the petitioner had not taken any steps. In the second petition it was stated that although he was serving under the police department, notice according to Section 66 of the Code was not served on him. He did not also refuse to accept the notice sent by the court directly. He did not many the opposite party at all. For the first time he came to know of the impugned order on 2-1-1988 when his salary was attached. In support of the averments he filed an affidavit on 1-3-1988. No objection was filed by the opposite party.
5. At the time of hearing, evidence was not adduced by either of the parties. The postal cover along with the endorsement of refusal was neither proved nor admitted into evidence. Only arguments of the learned counsel appearing for the parties were heard, and the learned Judicial Magistrate held that as the petitioner refused to accept the notice sent by post intentionally and deliberately to harass the opposite party, service on him was considered to be sufficient. Therefore, there was no irregularity in passing the impugned ex parte order. Period of limitation according to the proviso to Section 126(2) of the Code commenced from the date of the impugned order and not from the date of knowledge, i.e., 2-1-1988 when attachment of salary was effected and so the petition wag barred by limitation. Accordingly, the learned Judicial Magistrate refused to set aside the impugned ex parte order.
6. Mr P.K. Dhal, learned counsel appearing for the petitioner raised the following contentions :
(1) Notice under the provisions of Section 66 of the Code was not served on the petitioner;
(2) Before proceeding to decide the case ex parte, the requirements of the proviso to Section 126(2) of the Code were not followed inasmuch as no effort was made that the petitioner wilfully avoided service and neglected to attend the Court; and (3) In the facts and circumstances of the case, the period of limitation commenced from the date of knowledge of the order and not fron the date thereof.
Mr. R.K. Ray, learned counsel appearing for the opposite party, on the other hand, urged that the proceeding was barred by limitation, because the petition for setting aside the ex parte order was filed long after three months of the date of the impugned order. The contentions require careful examination.
7. Indisputably the petitioner is a police officer and as provided in Section 66, the Court issuing notice should have ordinarily sent it in dublicate to the head of the office in which the petitioner was employed so that the notice could have been served on him as provided in Section 62 of the Code and for its return with the petitioner's signature with the endorsement to the issuing Court in such an event the signature could have been treated as evidence of due service. The above salutary procedure was, however not followed in the case and notice by registered post was sent directly to the petitioner showing that he was Sub-Inspector of police, Sukinda. In the Sukinda address he was obviously not found and the registered postal cover was redirected to Pattamundai Police Station where it was stated and endorsed to have been refused. Interpreting Section 66 of the Code, Mr. Ray submitted that the words shall ordinarily send it' occurring therein are indicative of the directory and not mandatory nature of the provisions contained therein, and so Courts shall be free to issue summons directly by post or otherwise on a person in the active service of the Government and if that course is adopted no illegality thereby be caused. The use of these words indeed shows that the provisions contained in Section 66 is not mandatory and in exceptional circumstances, a process can be issued even directly to the person concerned. But ordinarily, or rather usually, or in usual course, summons or notice to a person in the active service of the Government shall be issued by the Court in the manner provided in Section 66. Thus the rule is to comply with the provisions and the exception is to issue summons otherwise than provided in Section 66.
8. In the present case, the petitioner, being a Sub-inspector of police arid in the active service of the Government, should have been served with notice according to the provisions of Section 66 in usual course. If the notices in duplicate were sent to the appropriate authority, there was no doubt that the same could have been served effectively on him. But a critical perusal of the various orders passed by the learned Judicial Magistrate will show that sincere attempt was not made to comply with the aforesaid provisions and a short-cut method was adopt for service of notice by registered post with A.D. That too, it is not certain whether actually the petitioner was offered the registered cover containing the notice and he refused the same because there is absolutely no proof to that effect except the endorsement of refusal it is true that what was done in usual official course of business should be presumed to be correct. But when a party very strongly denies service of notice on him, it is incumbant upon the rival party to adduce some proof for discharging the onus of proof or service which is singularly lacking in this case. Therefore, in disagreement with the learned court below, I am inclined to record that service of notice of the proceeding under Section 125 of the Code on the petitioner with the endorsement of refusal was doubtful and cannot be accepted as having been proved. In reaching the above conclusion, I am supported by a decision reported in XIV G L.R. 711, Prabhulal Joshanker v. Jayaban Jethalal, wherein it was held in a case under Section 488 of the old Code that the postal endorsement 'refused' is not sufficient to show that the party must have refused to accept the same, because instances are not uncommon when such false endorsements are also made by the postal authorities at the instance of the interested parties. The first contention of Mr Dhal, therefore, succeeds.'
9. The next contention of Mr. Dhal is no longer res Integra in view of the decisions of this Court. In 1985 (II) OLR 433, Bharat @ Kathis Mallik v. Kissi Mallik, 1986 (1) OLR 558, Smt Sulochana Sahu v. Baman Ch Sahu, and 65 (1988) CLT 146 Biswanath Kabi v. Susama Dei, after review of a large number of decisions, this Court interpeted the proviso to Section 126(2) and held that if the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Before proceeding to hear and determine the case ex parte, a specific oder has to be recorded by the Magistrate to the effect that the person against whom an order for payment of maintenance is proposed to be made if wilfully avoiding service or wilfully neglecting to attend the Court. In the present case, the order passed by the learned Judicial Magistrate on 19-11-1984 has been quoted and it will appear therefrom that he did not specifically record that the petitioner was wilfully avoiding service of notice or wilfully neglected to attend the Court and so it was necessary to proceed against him ex parte. The contention of Mr. Dhal to the effect that the requirements of the proviso to Section 126(2) were not followed must have to be sustained. That being so, the ex parte order and preceding to hear the case in the absence of and without notice to the petitioner were illegal and completely without jurisdiction.
10. The third contention of Mr. Dhal with regard to the starting point of the period of limitation for filing a petition to set aside the ex parte order of maintenance is not without difficulty because of divergence of judicial opinion. It is to be pointed out that according to the proviso to Section 126(2) of the Code, the application showing good cause for setting aside an ex parte order of maintenance shall be made within three months from the date of the order. So in terms of the statutory provision, the period of limitation of three months commences from the date of the ex parte order of maintenance.
A Division Bench of the Kerala High Court in a case reported in (1975) M.L.J. (Crl.) 307, Thankamma and Anr. v. K. Appukuttan Nair, interpreted Section 488(6) of the old Code and proviso to Section 126(2) of the Code with regard to the starting point of limitation and held that the starting point of limitation is the date of order and not the date of knowledge of the ex parte order of maintenance. The aforesaid view was taken because of the plain language used in the proviso and as something else which was not provided by the statute, such as 'knowledge' could not be imported to it. This decision overruled a few earlier decisions of the same High Court in which a contrary view had been taken, it is pertinent to point out that the learned Judges made reference to AIR 1961 S.C. 1500, Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr. and AIR 1966 A.P. 50, Zohra Begum alias Aysha Begum v. Mohamed Chouse Cadri and Anr., but did not follow the principles laid down therein, to which reference would be made later.
In 1983 Crl. L.J. 1672, Bina Ganguli v. Rash Behari Ganguli, a learned Judge of the Calcutta High Court accepted the view that the period of limitation for filing application for setting aside the ex parte order of maintenance commences from the date of the order and not from the date of knowledge of the order. If the date of knowledge falls within three months from the date of order, no question of limitation arises and non-service of notice, if proved satisfactorily, may be urged as a good cause for setting aside she order. But when this date of knowledge fails beyond the period of three months from the date of order, question of limitation arises. In such circumstances, aid of Section 5 of the Limitation Act may be taken for condonation of delay.
In 1987 Crl L.J. 399 Balan Nair v. Bhavani Amma Valsalamma and Ors., a Full Bench of the Kerala High Court interpreted Section 126 and broadly laid down the following four principles :
(1) Before proceeding to hear and determine the case ex parte, the Magistrate has to apply his mind to the question whether the opposite party is wilfully avoiding service or willfully neglecting to attend the Court and be satisfied that there has been such wilful conduct on the part of the opposite party. The Magistrate cannot proceed ex parte without arriving at such satisfaction. It is desirable for the Magistrate to pass a formal order recording such satisfaction and giving reasons for such satisfaction. However, the condition precedent for proceeding ex parte is the satisfaction based on reasons and not the formal order. The satisfaction must be discernible from the record. A formal order is desirable, but the absence of a formal order would not vitiate the order or the proceeding so long as the record evidence circumstances which show the existence of reasons to satisfy the Magistrate on this score and which imply such satisfaction;
(2) In special circumstances there may be no difficulty to effect services of notice by registered post on a public servant;
(3) A person against whom an ex parte order has been passed has the right to file an application for setting aside the same, provided the application is filed within a period of three months from the date of order. Even if there is delay in filing the application, it is open to him to invoke Section 5 of the Limitation Act; and (4) Besides filing an application for setting aside the ex parte order of maintenance, a party has another remedy available to him. It is open to him to challenge the ex parte order by way of revision before the revisional court in terms of Section 397 of the Code.
In 1988 (3) Crimes 525, Amal Guha v. State of West Bengal and Anr., a Division Bench of the Calcutta High Court held that no application for setting aside an ex parte order of maintenance should be filed within three months from the date of the order itself and not from the date of the knowledge.
11. The other point of view that limitation shall be computed from the date of knowledge has been laid down in the following decisions.
In AIR 1966 A.P. 50, Sohra Begum alias Aysha Begun v. Mohamed Ghouse Sadri and Anr., Jaganmohan Reddy, J. (as he then was) referred to AIR 1961 S. C. 1500, Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr., and interpreted Section 488(6), proviso which is pari materia Section 126(2), proviso and held that an application for setting aside an ex parte order of maintenance can be filed within three months from the date of knowledge thereof. He relied upon the following observations of the Supreme Court in AIR 1961 S.C. 1500 (supra) :
"Where the rights of a person are affected by any order and limitation is prescribed of the enforcement of the remedy by the person aggrieved against the said order, the making of the order much mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by this Collector under Section 12 of the Land Acquisition Act, 1894, either actual of constructive is an essential requirement of fair-play and natural justice. Therefore the expression 'the date of the award used in proviso (b) to Section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually, or constructively. It will be unreasonable to construe the words from the date of the Collector's award" used in the proviso to Section 18 in a literal mechanical way."
A Full Bench of the Punjab & Haryana High Court in 1972 Cri.L.J. 93, Joginder Singh Gurmukh Singh v. Smt. Balkaran Kaur, also interpreted Section 483 (b), proviso of the old Code and held that a husband, against whom an ex parte order has been made fixing maintenance allowance is entitled to reckon the period of limitation of three months from the date of knowledge of the order for an application made to set aside that order on the ground that he had neither wilfully avoided Service nor wilfully neglected to attend the court and pleads want of the knowledge of the order Teminus a quo for reckoning the period of limitation in such a case is not the date of the order. It was further laid down that a decision adversely affecting a party does not come into force before the party acquires knowledge thereof, either actual or constructive, and this rule is of universal application, notwithstanding the fact that the legislature is fully aware of the implication flowing from the use of the word " knowledge" in statutes prescribing limitation, as is clear from the language exployed in Article 123 of the Limitation Act. The awareness of the legislature about the significance of the knowledge of a Party about a decision affecting it must thus be held not to be a relevant consideration in the matter of interpretation of a statute of limitation. It was also held that a party aggrieved by an ex parte order passed under Section 488 of the Code may be entitled to apply for the extention of the period of limitation under Section 5 of the Limitation Act, 1963 which does not appear to be a relevant consideration for the purpose of interpreting Section 488(c), proviso of the old Code. In arriving at the above conclusion, the learned judges followed the decision of the Supreme Court in AIR 1981 SC 1500 (supra) and referred to AIR 1963 Mysore 239, The State v. Bhimrao and Anr. and the decision of Andhra Pradesh High Court in AIR 1966 AP 50 (supra).
In 1974 Cr. LJ 1234 (Bhaniram v. State and Anr., it was held by a learned Judge of 'the Allahabad High Court that the limitation for setting aside an ex parte order of maintenance begins from the date of knowledge of the order and not from the date of passing of the order.
Earlier, a learned Judge of the Calcutta High Court in AIR 1971 Calcutta 244, Hamandra Nath Chowdhury v. Smt. Archana Chowdhury, had taken an identical view, which, however, stood overruled by a decision in 1988(3) Crimes 525 (supra).
In 1985 Crl. L.J 1294, Sukhirthemsal v. Muramanion, the question which arose for consideration before Ratnavel Pandian, J. (as he then was) was as to what is the terminus' a quo for reckoning the period of limitation for an application to have an ex parte order of maintenance set aside when it is alleged that the person against whom the said order has been passed was not served with the summons in the maintenance proceedings and that be acquired knowledge of the ex parte order only within three months preceding the date of the application made in this behalf. After examination of several decisions including some of those discussed in this judgment, it was ruled that in a case in which without service of notice an ex parte order of maintenance has been passed, limitation for setting aside the ex parte order will be reckoned from the date of knowledge thereof.
12. As would appear from the above discussion, there is sharp difference of opinion of different High Courts with regard to computation of starting point of limitation for a petition for setting aside an ex parte order of maintenance. The reasons assigned in support of conflicting views are equally weighty. Both the views can, however, be reconciled. In case where there is fraudulent suppression of service of notice or non-service of notice on the person against whom an ex parte order of maintenance has been made, he shall irreparably suffer, unless limitation is computed from the date of his knowledge of the order. If in such a case limitation shall be computed from the date of the order, parties shall be encouraged to suppress service of notice in collusion with the Process Server and/or the Postman, as the case may be, so as to have an easy victory against the opponent and acquire an ex parte order of maintenance. In such a case grave injustice would result for the person against whom the ex parte order of maintenance is made, because he will be left without any remedy. Therefore, as rightly pointed out in AIR 1961 SC 1500 (supra) knowledge of the party effected by the adverse order either actual or constructive is an essential requirement of fair-play and the natural justice. So, on material available on record, if the court will come to the conclusion that there has been fraudulent suppression of service of notice or no effective service of notice of the maintenance proceeding on the person against whom an ex parte order of, maintenance has been made, limitation for a petition for setting aside such order shall be the date of knowledge of the order and not the date of the order. But there may be other cases such as illness or other sufficient cause for which a party may not be able to appear in the court despite proper service of notice. When an ex parte order of maintenance is passed against him in such circumstances and for any sufficient cause he is unable to make a petition for setting aside the ex parte order within three months from the date of the order, there may not be legal difficulty for making such a petition even beyond three months of the date of the order, if a petition for condonation of limitation under Section 5 of the Limitation Act, accompanies such petition. In such a case if the court would be satisfied that sufficient cause existed for non-appearance of the party on the date of bearing, then there would be no impediment to condone limitation and accept the petition for setting aside the ex parte order of maintenance under Section 126(2), proviso. These instances are only illustrative, but not exhaustive. But in normal course, limitation is to be computed from the date of the order.
13. In this case, I have held that service of notice by registered post on the petitioner on refusal was doubtful and there was no service on him according to the provisions of Section 66 of the Code. This being the position and particularly when the petitioner being in the employment of the Government was posted from place to place at different times, it could not be possible on his part to know the date of ex parte order of maintenance so as to file the petition for setting aside the order within three months from making thereof and it would not be unreasonable to assume that he came to know of the ex parte order of maintenance only after his pay was attached on 2-1-1988. The petition for setting aside the ex parte order having been presented within three months from the date of knowledge thereof was, therefore, maintainable. This being the position the order passed by the learned Judicial Magistrate is unsustainable. The ex parte order is liable to be set aside and the maintenance case is remitted to him for fresh disposal according to law after giving him an opportunity of filing his objection. As an interim measure, however, the petitioner shall continue to pay maintenance @ Rs. 150/- per month to the opposite party from 13-2-1985 (the date of the order) along with arrears.
14. Before I depart from the case, I would suggest amendment of Section 126(2), proviso so as to make provision to enable an aggrieved person to make a petition for setting aside an ex parte order of maintenance within three months from the date of the knowledge of the order in analogy of Article 128 of the Limitation Act, 1963. If such amendment is made, there shall be statutory reconciliation of the divergent views of different High Courts which would eliminate the confusing legal position on the subject.
15. In the result, the criminal revision is allowed and the impugned order is set aside. The case is remitted for disposal according to law subject to the observations made above.