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Sham Sunder Vs. Kailash Rani



Bench: JUSTICE A Chowdhri

Sham Sunder vs Kailash Rani on 23 May 1990

Law Point:
Order under Section 127 CrPC for enhancement of maintenance allowance being a judicial order has to be passed only after summoning the opposite party.





1. This is a petition under Section 482 of the Code of Criminal Procedure (for short the Code) calling in question the order, Annexure P/2 dated 8-10-1986 passed by Judicial Magistrate and order of Addl. Sessions Judge Annexure P/1 dated 14-2-1989 dismissing the revision against the said order. The brief material facts are that by order dated 3-5-1976, maintenance @ 100/- P.M. was fixed under Section 125 of the Cr. P.C. by Judicial Magistrate in favour of the respondent Shrimati Kailash Rani. Later on Kailash Rani made an application under Section 127 of the Code for enhancement of the maintenance allowance. It appears that notice of the application for enhancement was sent by registered post to the petitioner at Primary Health Centre, Rajoke. The registered letter was returned with the report of refusal. The case of the petitioner is that at that time he was, in fact, posted at Rural Dispensary, Valtoha attached to the aforesaid Primary Health Centre, Rajoke. In fact, on the date he is supposed to have refused to accept service, he was away for a Refresher Course to Medical College, Amritsar. The petitioner was proceeded against ex-parte and by order dated 5-5-1983, Annexure P/3, the learned Magistrate enhanced the amount of maintenance to Rs. 175/- from the date of order.

2. In pursuance of the order, salary of the petitioner was attached with effect from December, 1983. However, the petitioner made an application dated 15-5-1984 i.e. after one year of the order enhancing the amount for setting aside the ex-parte order. The application was dismissed by the learned Magistrate by order, Annexure P/2 dated 8-10-1986 and the revision filed there against was dismissed by the learned Additional Sessions Judge by order, Annexure P/1 dated 14-2-1989. In these proceedings, the petitioner seeks quashing of the aforesaid order, Annexure P/1 and P/2.

3. The facts stated above are not in dispute. The learned Additional Sessions Judge has based his order on two grounds :

(i) that the period of limitation prescribed under Section 126(2) of the Code is three months from the date of the order whereas the application for setting aside the ex-parte order was made more than one year after the order and as such it was barred by limitation; and

(ii) the petitioner failed to rebut the initial presumption of correctness of the report of Postman regarding refusal of service and it should be presumed that the service was effected in accordance with law.

After hearing the learned counsel for both the parties I find that it is not possible to sustain the intrigued orders.

4. The order under Section 127 for enhancement of the maintenance allowance being a judicial order has to be passed after summoning the opposite party. The procedure for service of summons is laid down in Section 62 of the Code. Under Section 62 every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an Officer of the Court issuing it or other public servant. According to rules contained in Chapter 8-A of the High Court Rules and Orders, Volume IV, in non-cognizable cases summons are required to be served through the civil process serving agency attached to the Courts. Even though provision has been made in Section 69 of the Code for service of summons by registered post but the same is confined to witnesses. That provision cannot be pressed into service in so far as service of summons on the party to the dispute is concerned. From the above noted provisions, therefore, it was necessary to serve the summons through the Process, Serving establishment. In other words, service through registered post was not in compliance with the above provisions. I have not been referred to any provision or rule made under Section 62 of the Code whereby service of summons is permitted on the opposite party by registered post. Broadly speaking any irregularity in the service of summons is a curable irregularity within the meaning of Section 465 of the. Code unless it can be shown that it has caused serious prejudice to the petitioner and has resulted in failure of justice. The same conclusion was reached in ‘Surti Lal v. Sudesh Kumari etc 1982 CLJ (C & Cr.) 104 in which an earlier authority of this Court in ‘Gurnam Singh v. Mst. Datto’ AIR 1952 East Punjab 20, was relied upon. To the same effect is the law laid down in Revappa v. Gurusanthawwa, AIR 1960 Mysore 198. Incidentally, there is a striking similarity between the facts and circumstances of the present case and the case of Revappa (supra)-. It as contended in Revappa’s case that there was a presumption under illustration (e) of Section 114 of the Evidence Act that all official acts have been regularly performed. The contention was rejected with the observation that what the said provisions lays down is that if it is proved that an official act has been performed, then in the absence of any other evidence, it shall be presumed that it has been done regularly. In the facts of the present case, on the other hand, it is nowhere shown that the summons was sent at the correct address. There is no material on record to show that the respondent was not posted at the Rural Dispensary, Valtoha as distinguished from Primary Health Centre, Rajoke. It is also not shown that at the time when the petitioner is stated to have refused service, he was not away on some Refresher course to Amritsar. The irregularity in the service of summons on the petitioner in the facts of this case has clearly caused serious prejudice to him in that an order has been passed against him without giving him an opportunity to place his case before the Court. This has occasioned a failure of justice. To sum up, therefore, the petitioner was not served in the application under Section 127 of the Code in accordance with law. He could not, therefore, be proceeded against ex-parte on the basis of report of refusal made by the Postman. In any case the order dated 5-5-1983 has occasioned a failure of justice and the irregularity in effecting service was not curable. The conclusion that application for setting aside the impugned order is barred by limitation is based on the presumption that the party had been served according to law. Where, as in the case, there is no service according to law, there is no question of the period of limitation being applicable against him. The impugned orders thus suffer from the aforesaid material irregularity.

5. It was contended by Mr. Keer, learned counsel for the respondent that the petitioner must have come to know about the order enhancing maintenance allowance to Rs. 175/- as the amount was deducted from his salary for December, 1983 paid in January, 1984, onwards. The application for setting aside the ex parte order was made on 15-5-1984. Adequate factual basis has not been brought on the record to fix the requisite know ledge of the petitioner regarding the ex parte order. It has not been shown when attachment of part of the salary was first effected, whether there were arrears due to be recovered, whether the amount of attached salary was increased in December, 1983 and when the petitioner actually received his salary for the month of December, 1983, January, 1984 etc. This assumes significance as according to the petitioner he was away for some refresher course. In these circumstances, it is not possible to record a finding that the petitioner knew about the ex parte order earlier than admitted by him.

6. The order passed is, therefore, unsustainable. The same is set aside. It is directed that the petition under Section 127 of the Code made by the respondent shall be disposed of by the learned Judicial Magistrate in accordance with law. To avoid hardship to the respondent, it is further directed that as far as possible the present application under Section 127 of the Code shall be disposed of by the learned Judicial Magistrate within six months of the receipt of copy of this order. Parties through their counsel are directed to appear before the trial Magistrate on 8th June, 1990.

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