THANKAMMA Vs. APPUKUTTAN NAIR
HIGH COURT OF KERALA
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(1.) An application dated October 20, 1971 filed by the respondent, who is employed in Military Service, under the proviso to S.488(6) of the Criminal Procedure Code, 1898 - Proviso to S.126(2) of the new Code of 1973 for setting aside an order passed ex parte on May 17, 1971 against him granting maintenance to his illegitimate child at the rate of Rs. 25 per month, was allowed by the District Magistrate, Trichur. The application was filed far beyond the period of three months prescribed in the proviso. S.488 of the Code, so far as is material for the present purpose, reads: -
x x x x x x x x x x x x
(6) All evidence under this chapter shall be taken in the presence of husband and father as the case may be. or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases:
Provided that if the Magistrate is satisfied that he is wilfully avoiding service, of wilfully neglects to attend the court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown on application made within three months from the date thereof".
According to counsel appearing for the respondent the starting point of limitation for an application filed under the proviso is the date when the respondent got knowledge of the order. To accept that position would plainly be to add words to the proviso which are not there because the proviso is specific that the application has to be within three months of the order passed ex parte. In Mahadeva Iyer v. Krishnammal 1970 KLT 292 , a Single Judge's decision of this court, it was held that the starting point of limitation was the date of the order. as the matter has been discussed there in detail and we are in respectful agreement with all the reasons mentioned there to reach that conclusion it is unnecessary to repeat them here. No doubt a different view was taken in S. A. Kochukuttan v. Smt. Narayanikutty Crl. R.P. 159 of 1971 (unreported) a later Single Judge's decision of this court. But it is seen that in that case the earlier decision in Mahadeva Iyer v. Krishnammal 1970 KLT 292 was not brought to the notice of the learned Judge who decided it. In the later decision the learned Judge in support of the position he took relied upon a Single Judge's decision of the Andhra Pradesh High Court in Zohra Begum v. Mohamed Ghouse Qudri Qadeeri and another AIR 1966 Andhra Pradesh 50 where the Andhra High Court followed the decision of the Supreme Court in Raja Harish Chandra v. Deputy Land Acquisition Officer AIR 1961 SC 1500 and held that the starting point of limitation was the date of knowledge of the order. The decision of the Supreme Court was in respect of a land acquisition case and not in respect of a proceeding under S.488 of the Cr. P.C. The decision of the Madras High Court in A. S. Govindan v. Mrs. Margaret Fayammal AIR 1950 Mad. 153 directly applies to this case. There a learned Single Judge held that there was no justification for importing in the proviso to S.488(6) the word "knowledge" which was not there and that decision was followed in the earlier decision of this court in Mahadeva Iyer v. Krishnammal 1970 KLT 292. There is one more decision of this court, Raghavan Unnithan v. Vijayamma 1962 KLT 526 and that also a is Single Judge's decision. It was held there that as a Magistrate could under the proviso to S.488 (6) of the Code proceed ex parte only after due service of summons on the respondent and after the Magistrate was satisfied that the respondent was wilfully avoiding service or wilfully neglecting to attend court the bar of three months in filing the application to set aside the order passed ex parte would not apply if that order was passed without complying with those provisions. That decision was arrived at on an interpretation of the words "any order so made" occurring in the proviso. The decision of the Travancore - Cochin High Court in C.A. George v. Chacko Joseph 1953 KLT 542 that the omission "of the Magistrate to comply with the provisions in passing an order ex parte would affect his jurisdiction to pass the order was cited with approval and followed in that case. The views expressed in those decisions, with respect, do not appeal to us. Jurisdiction is the power of the court to hear and determine a matter and to adjudicate and exercise any judicial power in relation to it. It is the authority to take cognizance of matters coming up for decision and to decide matters that are in dispute. There is a real distinction between existence of jurisdiction and exercise of jurisdiction. It is the authority to decide the case and not the decision rendered therein that enters in the notion of jurisdiction. While the authority to decide the case is essential for the foundation of jurisdiction the rendering of the decision relates only to the mode in which such jurisdiction is assumed and exercised. If initially there is authority to decide and so there is jurisdiction in a proceeding, erroneous decision made in it would not make it one without jurisdiction. Courts have jurisdiction to pass both right and wrong orders. Hence in deciding the question of jurisdiction to interpret the words "any order so made" in the proviso as confined to a right or correct order passed after scrupulously following all the provisions of law would be an unwarranted restriction of the import of those words. The provisions of the Cr. P. C. of 1898 which define and regulate the jurisdiction of courts are those in S.177 to 199 in Chap.15 and it is not the issue of summons, which does not occur in those provisions, that confers jurisdiction on courts over persons. Unlike the heads of jurisdiction like territorial jurisdiction or jurisdiction over subject matter or offences, which are all essential in that they are conditions precedent for acquisition of authority on the part of the court, jurisdiction over persons is one, the defect, if any, in which can be waived or dispensed with and that is what has been done in the proviso which says that even if no summons is served on the respondent if the court is satisfied that he is wilfully avoiding service or he is wilfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex parte. Unless it is set aside, that decision is valid and binding. That cannot be so if it is issue of summons that confers jurisdiction over a person. So it is not the service of summons upon the respondent that confers jurisdiction on the court over him. With great respect we consider the decisions in Mahadeva Iyer v. Krishnammal 1970 KLT 292 and A. S. Govindan v. Mrs. Margaret Jayammal AIR 1950 Mad. 153 that the starting point for limitation under the proviso to S.488(6) of the Code for an application to set aside an order passed ex parte is the date of the order and not the date of knowledge of the order as laying down the correct law and do not agree with the decisions in C. A. George v. Chacko Joseph 1953 KLT 542, Raghavan Unnithan v. Vijayamma 1962 KLT 526, S. A. Kochukuttan v. Smt. Narayanikutty Crl. R. P. 159 of 1971 (unreported) and Zohra Begum v. Mohamed Gouse Qadri Qadeeri and another AIR 1966 Andhra Pradesh 50 which hold otherwise. The decisions in 5. A. Kochukuttan v. Smt. Narayanikutty Crl. R. P. 159 of 1971 (unreported) and Raghavan Unnithan v. Vijayamma 1962 KLT 526 are overruled. We allow this revision petition, set aside the order of the court below and dismiss the application filed by the respondent under the proviso to S.488(6) of the Cr. P.C. for setting aside the previous order passed ex parte against him as it, is barred by limitation.;
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