Orissa High Court
Indramani Jene vs Smt. Minjilata Jena And Anr. on 2 May, 1991
Equivalent citations: 1992CRILJ2007, 1992(I)OLR272
JUDGMENT L. Rath, J.
1. This revision is directed against an order passed by the learned S.D.J.M., Bhadrak refusing to set aside an ex parte order of maintenance passed against the petitioner. The facts in brief are that the opposite parties, respectively the another and daughter, filed Misc. Case No. 182/33 on 21-12-1988 claiming maintenance of Rs. 300/- per month from the petitioner. Earlier, a Misc. Case filed by the opp. party No. 1 in the same Court numbered as Misc. Case No. 18/86 for maintenance had been dismissed for default on 5-4-1988. On 21-12-1988 notice was directed to be issued in M.C.No. 182/88 fixing 30-1-1989 for appearance. The notice having been returned back unserved, order was passed on 30-1-1989 for reissue of the same fixing 7-2-1989 for service return. On 7-2-1989, the learned S.D.J.M. recorded the following order :
"Order No. 3 dated 7-2-1989 :
Adv. for petitioner files hazira. S. R. back being served by (sic) affixture on refusal. Petitioner proves service. Service on O.P. is made sufficient. O.P. is absent. Hence set ex parte. Posted to 15-3-1989 for ex parte hearing."
The matter was thereafter heard ex parte and disposed of on 20-3-1989 granting maintenance to the opposite parties at the rate of Rs. 300/- per month. Misc. Case No. 45/89 out of which this revision arises was filed by the petitioner on 11-4-1989 complaining of non-service of summons upon him, of the opp. party No. 1 having not married him and opp. party No. 2 being not his daughter through opp. party No. 1. It was stated that he is an unemployed student preparing for examination, that his family and the family of the opposite parties had enmity with each other, that he is yet unmarried and that they belong to different communities. In the case, the petitioner examined himself as PW 1 and another Bharat Ch. Panda has been examined as PW 2 as regards service of summons on him as reported by the process server. The opposite parties did not examine any witness to oppose restoration. The learned Magistrate rejected the petition on 23-1-1990 disbelieving the evidence led by the petitioner and holding that he had sufficient notice in the matter.
2. Miss Das in assailing the order urges of prima facie the summons not to have been served upon the petitioner; the learned Magistrate having acted without jurisdiction in setting the petitioner ex parte, and that the conclusion reached regarding service of summons on the petitioner being wholly contrary to the evidence on record. It is her submission that since the summons purported to have been served upon the petitioner was handed over to the process server by the Nazir on 31-1-1989 as appears from the endorsement on the summons from the report of the process server being that he offered the summons to the petitioner at 9.00 a.m., read out the same to him and on his refusal to accept affixed the notice on his door, is not believable as the summons could only have been handed over to the process server on 31-1-1989 during office hours and hence it could not have been offered to the petitioner at 9.00 a.m. that very day. The submission is repelled by the learned counsel for the petitioner contending that the report of the process server does not show the summons to have been offered to the petitioner at 9.00 a.m. but only to have been offered at 9 hours. I am not persuaded to accept the submission of Mr. Misra in this regard since ordinarily 9 hours would mean the time in the morning and if the summons would have been offered at night, the process server would have reported the same having been offered at 9 p.m. It thus raises a reasonable suspicion, as submitted by Miss Das, that summons had not been served on the petitioner at 9.00 a.m. That apart, the provision of Section 126(2), Cr. P. C. authorises the Magistrate to proceed to hear and determine the application under Section 125 Cr.P.C. ex parte if he is satisfied that the person against whom the maintenance order is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court. The essence of the provision is satisfaction to be reached by the Magistrate of the person concerned wilfully avoiding service or wilfully neglecting to attend the Court. It is pre-eminently desirable that the order setting a person ex parte must disclose ex facie such satisfaction having been reached. Since the order is available to be scrutinised in revisional jurisdiction of this Court, it is necessary to be a speaking one so as to disclose the mind of the learned Magistrate to enable the High Court, while in seisin of the case, to find out the justifiability of the order. Admittedly, as the order of the learned Magistrate extracted above would show, no such satisfaction was recorded. The question has been dealt with by several decisions of this Court and it has been held that in the absence of recording by the Magistrate indicating that the person concerned was wilfully avoiding service or was wilfully neglecting to attend the Court, the Magistrate would have no jurisdiction to proceed ex parte. Reference may be made to 1985 (II) OLR 435, 60(1985) CLT 433(Bharat @ Kathia Mallik v. Niasi Mallik), 1988 (I) OLR 31, 65 (1988) CLT 146 (Biswanath Kabi v. Susama Dei) and 1989 (I) OLR 307, 67 (1939) CLT 644 (Kasinath Mohapatra v. Arnapurna Panda @ Mohapatra). It is as such a matter of jurisdiction of the learned Magistrate to enable him to proceed ex parte that he must record his satisfaction for proceeding ex parte.
3. It is however the submission of Mr. Misra that even if such satisfaction is not expressly recorded in the order, yet if such satisfaction can be gathered from the surrounding circumstances or the conduct of the person who had been set ex parte, the mere non-recording of the satisfaction in the order should not vitiate the proceeding and should be upheld. Reliance has been placed by him in the matter on 1987 Cr.L.J. 399 (Balan Nair v. Bhavani Amma Valsalamma and Ors.), a Full Bench decision of the Kerala High Court. In para 13 of the judgment their Lordships declared in unmistakable terms that it is desirable for the Magistrate to pass a formal order recording the satisfaction and giving reasons for the satisfaction and that the more informed view is that a format order is desirable. It was further held that the absence of a formal order would not vitiate the order or the proceedings so long as the record evidences circumstances which show the existence of reasons to satisfy the Magistrate on this score and which imply such satisfaction. Mr. Misra has also relied on AIR 1978 SC 1807 (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors.) and AIR 1979 SC 362 (Rai Tahira v. Ali Hussain Fissalli Chothia and Anr.) to contend that Section 125 Cr.P.C. being a socio-economic legislation is to receive a beneficial interpretation so as not to defeat its objective but to advance it.
4. Apart from the question that I am bound by the decisions of this Court, there is also no question here of the provision of Section 125 Cr. P. C. being defeated by any technical approach. The question of service of notice on an adversary before the order affecting him is passed is not a technical one but is one which is the fundamental of all judicial procedures and is of most paramount importance and where it is found that an order has been made in the absence of the other side without any justifiable excuse for proceeding ex parte, the same is to be struck down in no uncertain terms. Even accepting the judgment of the Kerala High Court, it is seen that the learned Magistrate has not acted in consonance with the statute itself. The petition for maintenance was presented on 21-12-1988 on which date notice was issued fixing 30-1-1989 for appearance. On that date the learned Magistrate himself passed order that the notice had been received back unserved and hence he fixed the case to 7-2-1989 awaiting service return. No order was recorded that the petitioner was avoiding to attend Court. On 7-2-1989 also nothing was recorded in the order that the petitioner was wilfully avoiding service of notice or was wilfully avoiding to attend the Court. As such, the only material before the learned Magistrate was the report of the process server to reach the conclusion that the petitioner was wilfully avoiding service of notice.
5. In this context, it is also necessary to consider the evidence led by the petitioner. In his evidence he stated that though his father was serving in the Railways and was remaining at the Charampa Railway Colony, yet he remained in the village and occasionally used to come to Charampa. PW 2 also stated that in his presence no notice was ever offered to the petitioner and he had never refused to accept any such notice. He further stated that the petitioner was not remaining in the Railway Colony but he knew him since PW 1 was coming sometimes to the house of his father in the Railway Colony. This evidence of PW 2 was rejected by the learned Magistrate since he stated that he had never signed on any summons but had put his signature on a plain paper. The statement was not intrinsically wrong since the signature of PW 2 appears on the reverse of the summons which could have been blank and the endorsement of the process server might have been made subsequently.
6. Considering the facts and circumstances of the case as above, I am of the view that the petitioner had no notice of the case and that the order setting him ex parte was without jurisdiction. In that view of the matter, the order dated 23-1-1990 in M. C. No. 45 of 1989 of the S. D. J. M. is set aside and the Misc. Case is allowed. Consequently, the order of the learned Magistrate in Misc. Case No. 182/88 dated 20-3-1989 is set aside and the learned Magistrate is directed to proceed with the application for maintenance afresh in accordance with law. No further notice be issued to the petitioner who is deemed to have already received notice. The parties are directed to appear before the learned Magistrate on 14th of May, 1991 to receive further direction regarding proceedings of the case.