Andhra HC (Pre-Telangana)
Abdul Wahed vs Hafeeza Begum And Ors. on 11 June, 1986
ORDER
1. This revision petition arising under S. 125 of the Criminal P.C. is at the instance of the husband. The wife filed an application for maintenance to her as well as for her daughter and though it was filed in 1980 it was posted to 15-12-1983 for directing the issue of notice to the parties after remand by the Sessions Court. On 15-12-1983 both the petitioners and respondent were called absent and the matter was posted to 31-12-1983 and again both the petitioners and the respondent were called absent. Thereupon the trial court dismissed the petition for default. The wife and daughter filed a petition to set aside the default order and this application was dismissed on 31-1-1984. On revision petition the learned Sessions Judge held that the Magistrate has no power to dismiss the application for default and as such the order is illegal and the order is liable to be set aside by the sessions court exercising revisional jurisdiction. It is further held that assuming the Magistrate has power to dismiss the application for default, the proceedings for maintenance are in the nature of Civil proceedings and the court had power to set aside the order of dismissal for default. In this view the sessions court set aside the order of the trial court. Aggrieved by the said order the husband filed the revision petition.
2. The learned counsel for the petitioner contends that the petition for setting aside the default order is not maintainable and the sessions court erred in setting aside the order of default.
3. Chapter IX Cr.P.C. is a special code pertaining to maintenance of wives, children and parents in the Cr.P.C. Chap IX comprises three Sections namely Ss. 125, 126 and 127 and it is self-contained code designed to further speedy remedy for the grant of maintenance to wives, children and parents. Section 125 enumerates the conditions under which the relief of maintenance can be granted and S. 126 is concerned with procedural aspect and S. 127 relates to alteration in the quantum of maintenance to suit the changed conditions and circumstances. As this revision is concerned with the procedural aspect it is necessary, to dilate upon S. 126 which is as follows :
"S. 126 : Procedure :
1. Proceedings under S. 125 may be taken against any person in any district :-
a) Where he is, or
b) Where he or his wife resides, or
c) Where the last resided with his wife, or as the case may be, with the mother of the illegitimate child.
2. All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases :
Provided that if the Magistrate is satisfied that 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 and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the magistrate may think just and proper.
3. The court in dealing with application under S. 125 shall have power to make such order as to costs as may be just."
4. The proviso to sub-section (2) deals with the situation when the husband is absent and the court is empowered to hear and determine matter ex-parte and this order can be set aside on showing sufficient cause. There is no provision under this chapter indicating the procedure when the applicant is absent.
5. Section 126 Cr.P.C. is silent as to the order that can be passed when the applicant is absent. There is no indication as to either dismissing the application for default or the consideration of the matter on merits ex-parte. The learned counsel for the petitioner contends that the provisions under Chap. XIV are in the nature of Civil proceedings and the power to dismiss the application for default and set aside the ex-parte order are implicit. It is true that the provisions under Ss. 125 to 127 Cr.P.C. pertaining to maintenance have the trapping of Civil Proceedings and the projection of right to recover maintenance apparently of civil nature are transplanted in Criminal Procedure Code for providing speedy and imminent relief and immediate sustenance of life to the handicapped segment of the society. The proviso while providing the procedure for determining the matter ex-parte and also setting aside the ex-parte order in the event of the respondent being absent is conspicuously silent regarding in the even of applicant not diligent in prosecuting the matter. In so far as the dual situations of either being the plaintiff or the defendant being absent suitable provisions have been made under O.IX. C.P.C. and also setting aside the ex-parte orders if sufficient cause is shown and the pattern embodied in C.P.C. is evolved in so far as setting aside the ex-parte order when the respondent is absent, but the analogous provisions in C.P.C. in respect of orders that can be passed in the event of absence of the applicant has not been incorporated. The endeavour to read implicit power cannot be encouraged as there is no specific or implied provision to that effect and further the provision in the event of the absence of respondent and the absence of similar provision in the absence of the applicant can be inferred as eluding such power in the event of the absence of the applicant. We cannot escape the conclusion that there is lacuna regarding this aspect.
6. The learned counsel referred to the decision in Committee of Income-tax, Madras v. Chenniappa Mudaliar, wherein the Supreme Court held that the power of the appellate tribunal is circumscribed by the provisions of the Income-tax Act and the Tribunal has no inherent power to dismiss the appeal for default and the appellate Tribunal is obligated to dispose of the appeal on merits in view of the expression "as it thinks fit" in the provision for deciding the appeal. While interpreting the relevant provision in the Income-tax Act regarding the power of the Appellate Tribunal the Supreme Court held that the Tribunal has to decide the appeal on the basis of material available in the records and has no power to dismiss the appeal for default. The possibility and rationality for arriving at that conclusion can be supported by another approach namely the appellate tribunal has sufficient material processed by the primary and first appellate tribunal. But however in the case of maintenance petitions the trial court does not have material except perhaps the bald application of the applicant generally. In such circumstances it is not feasible to deposit the trial court with the power to dispose it of on merits. As referred to above there is not even an implied power to dismiss the default and as such there is lacuna. While considering the provisions of S. 16(2) of the Andhra Pradesh Tenancy Act in Jammula Atchayya v. Revenue Divisional Officer, , it is held as follows :
"That apart the Tahsildar and the Revenue Divisional Officer functioning as original or appellate authority under the Act, are special tribunals created under the statute for the purpose of disposing of the matters specifically provided under S. 16 of the Act. The procedure that has to be followed by any tribunal either administrative or quasi-judicial in character must be governed by the specific provisions empowering the special tribunal to dismiss an application or appeal, as the case may be, for default has been made under special enactment or the rules made thereunder, it must be construed that such tribunal has no jurisdiction to dismiss an application or appeal for default."
7. Sections 125 to 127 Cr.P.C. is an integrated Code specifically covering the claims for maintenance including the procedure and in the absence of specific or implied provision the analogous provision in C.P.C. cannot be incorporated.
8. The trial court is not empowered to pass an order dismissing the application for default and much less the application for setting aside the default order cannot be entertained. It is obvious that the trial court has no power to pass a default order. The revision has been filed before the Sessions Court against the order declining to set aside the ex-parte order and restore the same on file. The Magistrate has to power to pass default order or set aside such ex-parte order and the sessions court invoking the revisional jurisdiction cannot clothe such power with the magistrate in the absence of provisions to that effect in the Cr.P.C. Though the revision petition before the sessions court is confined to the order declining to set aside the ex-parte order, the sessions court under the powers vested in revisional jurisdiction is justified in setting aside the original order dismissing the application for default. The Sessions Court has ample power under revisional jurisdiction to revise any illegal order passed by the subordinate court and need not be fettered by the subject-matter in the revision petition. Considering from this perspective the order of the sessions Court is sustainable. Revision petition dismissed.
9. Revision dismissed.