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Documents citing Bharat @ Kathia Mallik vs Niasi Mallik on 10 September, 1985

Kasinath Mohapatra vs Annapurna Panda @ Mohapatra on 14 February, 1989

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.
Orissa High Court Cites 19 - Cited by 2 - Full Document

Indramani Jene vs Smt. Minjilata Jena And Anr. on 2 May, 1991

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.
Orissa High Court Cites 4 - Cited by 0 - Full Document

Indramani Jena vs Minjilata Jena And Anr. on 2 May, 1990

While in session 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 60 (1985) C L.T. 433, (Bharat alias Kathia Malllk v. Niasi Mallik), 65 (1988) C.L.T. 146=1 (1988) DMC 43 (Biswanath Kabi v. Susama Dei) and 67 (1989) C L.T. 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.
Orissa High Court Cites 4 - Cited by 1 - Full Document

Smt. Sulochana Sahu vs Baman Ch. Sahu on 3 April, 1986

In 1985 (II) O L R 435 (Bharatc@ Kethia Mallik v. Niasi Mallik), it was held that the proviso to Sub-see. 2 of Section 126 of the Code authorises the Magistrate to proceed to hear and determine the case ex parte, if he 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 has to record such a finding before he proceeds to dispose of the case ex parte In the absence of any such finding indicating that the person is either wilfully avoiding service or is wilfully neglecting to attend the Court the Magistrate would have no jurisdiction to dispose of the proceeding ex parte. That apart; the very same proviso also stipulates that if an application is made for setting aside the ex parte order and good cause is shown, then the Court would be well within its jurisdiction to set aside the ex parte order so as to proceed afresh with the maintenance proceeding subject to such terms including terms as to payment of costs.
Orissa High Court Cites 7 - Cited by 4 - Full Document
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