- (1.) CRIMINAL Revision 318 of 1968 has been referred to the Full Bench for decision but the main question that we are called upon to determine is at to what is the terminus a quo for reckoning the period of limitation for an application to have the ex carte order of maintenance made under Section 488, Criminal Procedure Code, set aside when it is alleged that the respondent against whom the said order was passed was not duly served and that he acquired knowledge of the order only within three months preceding the date of the application made by him in this behalf. The answer indisputably depends on the interpretation of proviso to Section 488 (6 ). Chapter XXXVI of the Code confers a statutory right of maintenance upon a wife or a child when the husband of the father, as the case may be, having sufficient means neglects or refuses to maintain them. The enforcement of this right is by means of a summary procedure as stated in the said chapter and Section 488 (6) appearing therein reads as under: 488 (6) All evidence under this Chapter shall be taken in the presence of the husband or 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, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex carte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.
(2.) BEFORE attempting to answer the question referred to above, it is necessary to briefly state the circumstances which led to the present reference. Smt. Balkaran Kaur respondent claiming to be the lawfully wedded wife of Joginder Singh petitioner before us made an application for maintenance under Section 488 of the Code in the year 1963 it being alleged by her that she and the petitioner after marriage lived together for three years but the latter developed illicit connections with other ladies and started maltreating her so much so that he turned her out and refused to maintain her. Summonses for service on the petitioner who was respondent in the. application for maintenance were directed to issue and efforts were made to serve him through the process serving agency attached to the Civil Courts- It is provided in Chapter 8 of the Rules and Orders of the : Punjab High Court, Volume IV. that in criminal cases which are not cognizable by the police, summonses are to be served through the civil process-serving establishment attach-ed to the Courts. On 15th November 1963 the process-server made a report to the effect that the petitioner was not staying in the village for a number of years as he was employed as a Teacher in a Government school on Simla side, There was later another attempt to serve him and the report as made on 2nd December, 1963, was that the petitioner had evaded service by disappearing on coming to know of the arrival of the process-server and that summons had been affixed on his residential house. The Magistrate recorded an order on 20th December. 1963, that since the respondent evaded service ex parte proceedings be taken against him. After recording evidence as was produced by Smt. Balkaran Kaur the Magistrate directed on 14th January 1964 that the petitioner should pay Rs. 60 per month as maintenance. The petitioner before us then made an application under Section. 488 (6) of the Code first on 4th March, 1967. which was dismissed for default of appearance and then again another on 14th March 1967 praying that the ex parte decision taken on 14th January 1964 be set aside and that maintenance proceedings should be conducted in his presence. This application, after notice to the opposite party, was dismissed by the trial Magistrate on 3rd April 1967 on the ground that the same was barred by limitation. It appears that the petitioner through his counsel Shri Bhagwan Singh, Advocate. Rajpura, served some notice to the respondent who sent a reply to her through her counsel Shri Des Raj, Advocate Mansa. This reply was dated 27th July, 1965, and Shri Bhagwan Singh, learned Counsel appearing before the trial Magistrate, did not deny that he had communicated the reply indicating that the respondent had obtained an order granting maintenance to the petitioner. On the basis of the statement made at the bar and the documents shown to the Magistrate he came to the conclusion that the petitioner must be deemed to have obtained knowledge of the order at least from 30th July, 1965, by which time the letter dated 22nd July, 1965. sent on behalf of the respondent must have reached him. Irrespective of this view of the matter, the trial Court was further of the opinion that the application made more than three months after the date of the ex parte order could not be entertained by him in view of the mandatory bar as contained in proviso to Section 488 (6) of the Code.
(3.) THE petitioner took the matter to the Sessions Judge Bhatinda who did not rely much on the finding of the Magistrate about the knowledge of the petitioner but upheld the view that the application of 3rd April, 1967, moved by the petitioner for setting aside the ex carte order dated 14th January, 1964, must be dismissed as barred by time. The petitioner, according to the learned Sessions Judge did not challenge the ex parte order of 14th January 1964 but only disputed the validity or correctness of the one passed on 3rd April, 1967, dismissing his application for setting aside the ex parte order.;