Talukdar, J. - (1.) This Rule is at the instance of the second party-petitioner, Hemendra Nath Chowdhury, against an order dated the 17th November, 1969 passed by Sri S. C. Talukdar, Chief Presidency Magistrate, Calcutta in case No. M/1103 of 1968 under Section 488 of the Code of Criminal Procedure, rejecting the petitioner's prayer for setting aside an ex parte order dated the 21st April, 1969, passed by the learned Chief Presidency Magistrate, Calcutta directing him to pay Rs. 300/- per month as maintenance to the 1st party-opposite party, Sm. Archana Chowdhury, and also a further order dated the 15th December, 1969 passed by the learned Chief Presidency Magistrate Calcutta directing the issue of a distress-warrant against the petitioner.
(2.) The facts leading on to the Rule are short and simple. The first party Sm. Archana Chowdhury filed on 12-11-68 an application under Section 488 of the Code of Criminal Procedure in the court of the Chief Presidency Magistrate, Calcutta against the second party, Hemendra Nath Chowdhury, claiming a maintenance of Rs. 350/- per month. It was stated therein inter alia that the first party is the legally married wife of the second party, and their marriage was registered under Act XLIII of 1954 on 27-4-68, and subsequently solemnised also according to Hindu rites; that after the marriage they lived together as husband and wife uptil 14-9-68 in a house at 1, Deshapriya Park (East), Calcutta; that the second party who has no other dependant is employed under M/s. India Steamship Co., of 21, Old Court House Street, Calcutta drawing a pay of Rs. 900/- per month; that all on a sudden the second party left the Deshapriya Park residence on 14-9-68 without any previous intimation and the first party came to know that he had left for Bombay to board a ship therefrom; that the first party was in great difficulties and on 31-10-68 when the second party's ship returned to Calcutta, she and the other members of her family went to the ship to receive him, but the second party who appeared to be indifferent gave out that he will not keep any further connection with her; that the second party in spite of having sufficient means has been neglecting and refusing to maintain the first party who is forced to live with her mother at 4/1, Rajendra Lala Street, Calcutta; and that accordingly she claimed for maintenance. The address of the second party was given as 21. Old Court House Street, Calcutta, C/o. India Steamship Co. Ltd. The case thereafter had a chequered history. On the 12th December, 1968, the notice on the second party returned unserved and the report of the process-server stated that the person concerned could not be found there as he was serving on board the steamship owned by the company. The learned Chief Presidency Magistrate, Calcutta, thereupon by his order of the same date directed fresh notice to be issued for being served on the identification by the first party. 13-2-69 was fixed as the next date. On the 7th February, 1969, as the process-server's report shows, he served the summons by posting the same in presence of two witnesses at 21, Old Court House Street, Calcutta which is the office of M/s. India Steamship Co. Ltd. The report stated that it was duly served by the process-server. The learned Chief Presidency Magistrate, Calcutta, considered the said service to be good and by his order dated the 13th February, 1969 observed that "Notice on the O. P. served by affixture. O. P. is absent. To 3-4-69 for hearing". On 3-4-69 the second party was absent and it was directed by the Court that as none appears for him or any cause is shown on his behalf an ex parte hearing is to start. Thereafter one P.W. was examined. On 12-4-69, the next date, the first party who was present was examined and 16-4-69 was fixed for arguments. On that date the first party was further examined and arguments were heard and 21-4-69 was fixed for judgment. On 21-4-69 an ex parte order was passed by the learned Chief Presidency Magistrate, Calcutta wherein it was observed that "in spite of the notice served on the opposite party, he has not come to contest the claim of the petitioner" and ultimately awarded a maintenance of Rs. 300/- per month to be paid from 1st April, 1969 by the second party to the first party. An order of attachment for Rs. 301/- from the salary of the second party was issued and served at the head office of M/s. India Steamship Co. Ltd., at Calcutta and the second party, while he was at Mombasa, serving on his ship, was informed about the same on 18-8-69 along with the intimation that the amount would be deducted from his salary. Enquiries were made by the second party, who on coming to know about the proceedings and the order passed therein sent an authorization dated the 2nd October, 1969 while at Venice from his ship "S. S. Indian Merchant" to Sri Bidyut Kumar Banerjee, Advocate wherein he stated that he had no knowledge regarding any proceeding brought by Sm. Archana Chowdhury against him nor had he any notice thereof and instructed him "to take all steps to set aside the decree and/or order passed against him by the learned C. P. M.. Calcutta and for that purpose to present plaint, application, memo of appeal etc., in the said Court for the said purpose". He further agreed to ratify all the actions that will be taken by him in connection with the same. Thereafter on 13-10-69 an application under Section 181(1) of the Merchant Shipping Act, 1958 was filed by the said learned lawyer in the Court of the Chief Presidency Magistrate, Calcutta for setting aside the ex parte order of maintenance dated the 2lst April, 1969 and for an ad interim stay of the order pending the hearing of the application. In the body of the said petition it was inter alia stated that there has been an illegal suppression of the facts in the application for maintenance by the first party, including the factum of the second party's absence from Calcutta as a serving seaman. For the ends of justice it was ultimately prayed that the order may be set aside. It was directed thereupon that the petition was to be put up in court along with the original records on 14-10-69. It was then heard in part and adjourned to 28-10-69 for further hearing when the matter was adjourned and on 6-11-69 the learned Advocates of both the sides were heard and two letters filed by the learned Advocate for the second party were kept on the record. After further hearing on the 14th and 15th November, 1969 Sri S. C. Talukdar who succeeded the previous incumbent as the Chief Presidency Magistrate, Calcutta, held inter alia that the said application was not maintainable under Section 181(1) of the Merchant Shipping Act, 1958; that it was also barred by limitation and that as the petition was unsigned by the affected party, it cannot form the legal basis for any action by the court and in that view he rejected the application without entering into the merits thereof. This order was impugned and the present Rule was obtained.
(3.) Mr. Priti Bhusan Barman, Advocate (with Mr. Kiran Chandra Mitra, Advocate) appearing in support of the Rule on behalf of the second party fairly submitted at the outset that he was not challenging the impugned order on the ground of maintainability of the petition under Section 181(1) of the Merchant Shipping Act, 1958. He conceded that the ratio decidendi of the learned Chief Presidency Magistrate, Calcutta in this context are quite proper but he pressed the Rule on the alternative ground that was urged in the court below viz., under the proviso to Section 488(6) of the Code of Criminal Procedure. He further submitted in this context that there is no bar to such a consideration in view of the inherent powers of this court under Section 561-A of the Code of Criminal Procedure. The said provisions do not really incorporate any fresh powers for the court but reiterate the fact that the court has already such inherent powers. As was observed by Sir Asutosh Mukherjee, J. in the case of Nanda Kishore Singh v. Ram Gulam Sahu, reported in (1913) ILR 40 Cal 955 at p. 959 that "the existence of this inherent power to do justice has been recognized from earliest times......... It is exercised ex debito justitiae to do that real and substantial justice for the administration of which alone the court exists". It is pertinent in this context to refer to the principles laid down in Domat's Civil Law, Chapter 12, Section 17 page 88 that "since laws are generally rules, they cannot regulate for all time to come so as to make express provision against all inconveniences which are infinite in number so that their disposition shall express all the cases that may possibly happen". I agree with the contention of Mr. Barman and apart from the alternative submissions already made in the court below for setting aside the ex parte order of maintenance under the proviso to Section 488(6) of the Code of Criminal Procedure, the same can also be interfered with in exercise of the inherent powers of this court, if and when it can be established that it is so expedient in the interests of justice. A reference in this context may also be made to the case of Hukum Chand Boid v. Kamalanand Singh reported in (1906) ILR 33 Cal 927 decided by Sir John Woodroffe and Sir Asutosh Mukherjee, JJ. Sir John Woodroffe, J. delivering the judgment of the court observed at page 930 that "for my part I am always slow to believe that the court's powers are unequal to its desire to order that which it believes to be just". I respectfully agree with the said observations. Finality is a good thing but justice is better and I accordingly hold that the application for setting aside tho ex parte order of maintenance filed in the court below cannot be thrown out merely because it purported to be under Section 181(1) of the Merchant Shipping Act, 1958.;