The court upheld the ex-parte maintenance order, affirming that proper service was established and the Magistrate's discretion in service methods is valid under the Criminal Procedure Code.

JUDGMENT :

(Rakesh Kainthla, J.)

The present petition is directed against the order dated 16.08.2019 passed by learned Sessions Judge, Kangra at Dharamshala H.P. (learned Revisional Court) vide which the order dated 18.12.2017, passed by learned Additional Chief Judicial Magistrate Palampur, District Kangra, H.P. (learned Trial Court) was upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the respondents/applicants filed an application before learned Trial Court for seeking maintenance. Learned Trial Court issued notices in an ordinary manner and through registered A.D. cover. The notices were not returned, hence, Dasti notice was be issued. Applicant No. 1 filed an affidavit on 20.07.2017 that the respondent had refused to accept the service of notice. A copy of the notice containing an endorsement of the process server was also filed. Hence, the Court vide order dated 05.08.2017 held that the respondent knew the date of the hearing but he had failed to appear before the Court. Hence, the respondent was proceeded against the ex-parte. The Court asked the applicants to lead evidence. Applicant No. 1 examined herself. Learned Trial Court granted maintenance @ Rs.15,000/- per month to applicant No. 1 and Rs.10,000/- per month to applicant No.2.

3. Being aggrieved from the order passed by learned Trial Court, the original respondent filed a revision which was decided by learned Sessions Judge, Kangra at Dharmshala (Revisional Court). It was held that the respondent has the remedy of approaching the learned Trial Court under Section 126 (2) of Cr.P.C. He could seek a modification of the maintenance under Section 127 of Cr.P.C. Applicant No. 1 stated that the income of the respondent was Rs.65,000/- per month from the immovable property and Rs.80,000/- to Rs.1,00,000/- per month as a Development Officer in LIC. There was no reason to disbelieve the statement. The learned Trial Court had rightly granted the maintenance to the applicants, and no interference was required with the order passed by the learned Trial Court.

4. Being aggrieved from the orders passed by the learned Courts below, the respondent has approached this Court asserting that the learned Trial Court had wrongly proceeded ex parte against him based on an affidavit submitted by applicant No.1. The respondent was never served. There was no evidence to award maintenance Rs.15,000/- to applicant No.1 and Rs.10,000/- to applicant No.2. The applicants had left home without any reasonable cause, and the respondent had filed an application before Gram Panchayat to bring her back. He had also filed a petition for restitution of conjugal rights, which is pending disposal. The income of applicant No.1 is more than Rs.2,65,000/-. The respondent has an aged & ailing mother and a widowed sister, who are dependent upon him. Therefore, it was prayed that the present petition be allowed and the orders passed by the learned Courts below be set aside.

5. I have heard Mr. Rajneesh K. Lall, learned counsel for the respondent and Mr. Sumesh Raj, learned counsel for the applicants.

6. Mr. Rajneesh K. Lall, learned counsel for the respondent submitted that the learned Trial Court erred in proceeding ex-parte against the respondent. The summons were not properly served and learned Trial Court erred in relying upon the affidavit of applicant No.1 to conclude due service. The provisions of the Code of Civil Procedure and Code of Criminal Procedure were not followed regarding the service of the notice. No Dasti summons could have been issued as per the provisions of Cr.P.C. Learned Revisional Court had also erred in holding that the respondent should have approached the learned Trial Court for setting aside the ex parte order. The respondent had a remedy of filing a revision, which could not have been dismissed on the ground that he shou