CHANDER SEN Vs. AKHTYAR MANI AND ANR.

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order, dated 20th January, 1973, passed by the Sub -Divisional Magistrate, Pooh, Kinnaur district whereby he dismissed in default the revision petition of the present Petitioner before this Court against the order of the Gram Panchayat, Kanam, fixing Rs. 50/ -per month as maintenance to Akhtyar Mani, who claimed herself to be the wife of the present Petitioner.

(2.) The Petitioner contends that the revision petition before the Sub -Divisional Judge was fixed for hearing on the 16th November, 1972, on which date he could not appear and as such he sent a telegram and it appears that the learned Magistrate had fixed 20th of January, 1973, as date of hearing, but the intimation of that date was not received by the Petitioner, and, therefore, the petition was dismissed. When in March the Petitioner went to the Court, he found that his application had been dismissed and accordingly he filed an application for restoration on 14th March, 1973, which was received by the Reader of the Court. He made an endorsement but on 6th of April, 1973, when the Petitioner again went to the Court to enquire about his application, the Respondent No. 2, i.e., the Sub -Divisional Magistrate returned the application informing him that the same relates to the High Court and the Reader scored off the endorsement and returned the application to the Petitioner. These facts have been supported by an affidavit of the Petitioner and no reply thereto has been filed by the Respondents controverting these facts. It is stated by the learned Counsel for the Petitioner that the case was adjourned from 16th November, 1972 to 20th January, 1973, and this clearly meant that the telegram which he had sent for the adjournment of the case from 16th November, 72, to some other date and that is why the 20th January, 1973, had been fixed and that he was not intimated of this date and it was only in March when he went to the Court he learnt that his petition had been dismissed. He could not go earlier because it is a snow -bound area and, therefore, earlier to 14th March, 1973, he could not reach the Court and this averment of his remains uncontroverted.

(3.) Now the question is whether the petition could be dismissed for default. There is no provision in the Code of Criminal Procedure, whereby any criminal proceedings can be dismissed for default much -less a revision petition and which a Court has to decide on the basis of the facts on the record if the parties are not before the Court. Therefore, prima facie the order is wrong.