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1995 Supreme(All) 961
IN THE HIGH COURT OF ALLAHABAD
T. P. Garg, J.
NEELAM - Appellant
Versus
VIITH ADDL.DISTT.AND SESSIONS JUDGE - Respondents
Cr. Misc. Writ Petition 6870 Of 1995
Decided On : 09/15/1995
SUNIT KUMAR
Courts can set aside ex parte orders if there is evidence to show that the absence or refusal to receive the notice was not wilful.
Headnote:
Jurisdiction - Ex parte Order - Setting Aside - Cogent Evidence
Fact of the Case:
The petitioners filed a petition in the Court, claiming that the lower courts had no jurisdiction to pass the orders and had acted in excess of their powers. They argued that the ex parte order should not have been set aside.
Finding of the Court:
The Court found that the lower courts had not exceeded their jurisdiction and had acted in accordance with the law. It noted that cogent evidence was presented to show that the absence or refusal to receive the notice was not wilful.
Issues: The main issue was whether the lower courts had jurisdiction to pass the orders and set aside the ex parte order.
Ratio Decidendi: The Magistrate can set aside an ex parte order if there is evidence to show that the absence or refusal to receive the notice was not wilful. The lower courts had not acted in excess of their powers and had jurisdiction to pass the orders.
Final Decision: The petition was dismissed, and the Trial Court was directed to decide the matter in dispute within four months.
( 1 ) SMT. Neelam, wife of Sri Dinesh Kumar Agarwal, and her minor daughter have filed this petition under Article 226 of the Constitution of Ind ia with the prayer to stay the operation of the order dated 7. 3. 1995, passed by the VII Additional District and Sessions Judge, Bulandshahr, respondent No. 1 in Criminal Revision No. 88 of 1994, and also the order dated 1. 2. 1993, passed by the VIIIth Addl. Chief Judicial Magistrate/ Bulandshahr, respondent No. 2 in Misc. Case No. 1031 of 1993, Dinesh Kumar Agarwal v. Smt. Neelam, under Section 126, Cr. P. C. and also to direct Dinesh Kumar Agarwal, respondent No. 3, to pay the maintenance allowance to them in pursuance to the order dated 26. 10. 1991.
( 2 ) BRIEFLY, the facts of the case are as under : smt. Neelam, petitioner No. 1 was married with Dinesh Kumar Agarwal, respondent No. 3, on 9. 2. 1989 at Bulandshahr. Sometimes in the year 1990 a daughter. Km. Isha @ Guriya, petitioner no. 2, was born to her from out of their wedlock. It is alleged that respondent No. 3 and members of his family started maltreating petitioner No. 1 ever since her marriage in order to get their demand of more and mere dowry satisfied. When she and her father failed to satisfy and fulfil the demand of respondent No. 3, she was turned out from his house by respondent No. 3 on 20. 9. 1990 alongwith her daughter. On 26. 9. 1990, a notice was sent to respondent No. 3, but the same was not accepted. Another notice dated 4 5. 1991 was served upon respondent No. 3 asking him to settle the dispute outside the Court, but to no effect. Finding no other alternative, she filed an application under Section 125, Cr. P. C. , on 11. 7. 1991 praying for the grant of maintenance allowance at the rate of Rs. 500/- to each of them (both petitioners No. 1 and 2 ). It is alleged that despite personal service of notice issued by the Court, respondent No. 3 did not appear before the trial Court and was, therefore, proceeded against ex parte, vide order dated 4. 10. 1991, respondent No. 2. Subsequently, on 26. 10. 1991, respondent No. 2, vide order (Annexure t to the petition), passed an exparte order whereby maintenance allowance at the rate of Rs. 300/- par month to petitioner No. 1 and Rs. 200/- per month to petitioner No. 2 was allowed. Since respondent No. 3 did not pay the amount of maintenance, so awarded, the petitioners filed an execution petition for realisation of the amount of maintenance from respondent No. 3, vide misc. Case Nos. 557 of 1993,731 of 1993 and 735 of 1993. Inspite of service of notices, respondent No. 3 did not put in appearance and accordingly, an order of attachment as well as warrant of arrest of respondent No. 3. Respondent No. 3 moved an application under Section 126, Cr. P. C. with a prayer to set aside the ex parte order of maintenance dated 26. 10. 1991 (Annexure 4 to the petition ). The application filed by respondent No. 3 was allowed by respondent No. 2, against which a Revision No. 88 of 1994 was filed by the petitioners. The learned Additional District and Sessions Judge, respondent No. 1 vide his order dated 7. 3. 1995 (Annexure 6 to the petition), dismissed the revision and maintained the order passed by the additional Chief Magistrate, respondent No. 2, and directed that the case be decided on merits.
( 3 ) FEELING aggrieved by both the aforesaid orders, th> , petitioners (Smt. Neelam and Km. Isha)filed the present petition in this Court.
( 4 ) SINCE notice ordered to be issued to respondent No. 3 was not received back, it was directed that fresh notice be sent in ordinary course as well as given Dasti to the Counsel for the petitioners for service. As per affidavit filed on behalf of the petitioners, respondent No. 3 were not available and the members of his family including his brother and brothers wife were informed, but they also refused to accept service. Learned Counsel for the petitioners has been heard and the record gone through.
( 5 ) FROM a perusal of the
