Rajeshwari Prasad, J. - (1.) ON 18 -3 -1966 the SDO, Ballia by his order refused to set aside an exparte order passed against the Applicant Madan Mohan on 8 -10 -1965, directing him to pay Rs. 50/ - p.m. as maintenance to his wife Smt. Usha Devi.
(2.) SRI Madan Mohan filed a petition in revision before the learned Sessions Judge Ballia against the order of the learned Magistrate. The learned Sessions Judge accepted the contention made on behalf of Sri Madan Mohan and made a recommendation to this Court that the order passed by the learned Magistrate in question be set aside and the Applicant's application for setting aside the ex parte order dated 8 -10 -1965 be allowed and the learned Magistrate be directed to hear the application Under Section 488 Code of Criminal Procedure on merits. The ex parte order which was sought to be set aside was passed on 8 -10 -1965. Application for setting aside the order was made on 8 -11 -1965. The ground for asking for the setting aside of the ex parte order was that summons had not been served on him and further that he had no knowledge of the proceedings. It was for want of knowledge that he could not appear to contest the petition. Sri Madan Mohan was employed as Lines Inspector in the Hydel Department Allahabad. The first summons for his appearance on 25 -6 -1965, sent through the Hydel Department, was returned from Allahabad with the report dated 17 -6 -1965, that Sri Madan Mohan had gone on leave and was not expected to return by the 25th of June. When summons was sent to him next time it was also returned by the SDO Hydel Allahabad with the report dated 22 -7 -1965, that Sri Madan Mohan had gone to Ballia on three days leave. The date fixed for appearance in the court was 26 -7 -1965. When there was failure to obtain service on the Petitioner twice the learned Magistrate directed that the summons be served on the Applicant by publication in The Leader Allahabad. The summons were consequently published in that paper and as a result of non -appearance of Madan Mohan in court the ex parte order sought to be set aside was passed on 8 -10 -1965.
(3.) IT is true that there is no provision in Code of Criminal Procedure prescribing publication in newspaper as a mode of service of summons. The learned Magistrate should not therefore have directed the publication of the summons in the newspaper. When an ex parte order is made against the opposite party in the proceedings Under Section 488 Code of Criminal Procedure it is open to such aggrieved party to apply, to get the order set aside, within three months from the date of the order and such exparte order will be set aside provided cause for doing so is shown as provided for by the proviso to Clause (vi) of Section 488 Code of Criminal Procedure. The learned Sessions Judge came to the conclusion that on the materials on the record it was not possible to hold that Sri Madan Mohan had knowledge of the proceedings. The only circumstance relied upon by the learned Magistrate appears to be that while oil leave Sri Madan Mohan was himself present at Ballia where the proceedings at the instance of his alleged wife were pending. That circumstance however is not conclusive of the fact that Madan Mohan had knowledge of the proceedings. Apart from it, if the person sought to be served with the summons happens to be a government servant the summons are to be issued through the head of the department in which he is employed. In the instant case also it was sent through the officials of the Hydel Department, Allahabad. The only manner in which such summons could be served as required by Section 72 read with Section 69 of the Code of Criminal Procedure was personal service on the addressee.;