S.S.DEWAN, J. - (1.) THE facts of the case are as under : Hem Raj has directed this revision petition against ex parte order dated 27.8 -1971 of Shri G. S. Sandhu, Chief Judicial Magistrate, Bhatinda, whereby he awarded maintenance allowance at the rate of Rs. 200/ - per month to Atma Devi wife petitioner and Rs. 200/ - per month to the two minor children petitioner.
(2.) THE brief facts relevant for this revision petition are that Atma wife of the petitioner filed an application for maintenance again; petitioner on 5 -5 -1971. Notice of this application was given to the petitioner and on 9 -6 -1971 the counsel for both the parties turned up when a copy of the application was given to the present petitioner's counsel the case was adjourned to 25 -6 -1971 on which date it was again adjourned to 6 -7 -1971 for filing a reply on which date the learned counsel for petitioner (husband) put in an application about exempting the presence of husband in view of his illness at Delhi. A medical certificate of Hans Raj Kapur in support of illness dated 22 -6 -1971 of the petitioner, was also attached with this application. The learned Magistrate did consider the medical certificate being not issued by a Government doctor and ordered that ex parte evidence be recorded against the husband since his personal appearance was necessary under the provisions of section 488 Cr. P. C. which was not dispensed with. The case was adjourned, 5 -8 -1971 for recording the applicant's evidence on which date the depositions of Atma Devi '(P. W. 1) Jagan Nath (P. W. 2) were recorded she closed her evidence. It is note -worthy that a telegram addressee the court by Hem Raj husband about his inability to attend the court 5 -8 -71 was also received by the court. In this telegram again the illness was the sole cause of absence from the court. On 5 -8 -1971 'he the was adjourned to 17 -8 -1971 in the presence of the counsel for both parties though the counsel for the husband was not allowed to cross examine these two witnesses. The case again adjourned to 27 -8 -14, when the final order referred above was passed. It is note -worthy that only applicant and her counsel were present on 7 -8 -1971 and 27 -8 -1971.
(3.) THE learned counsel for the husband petitioner mainly assailed the findings of the trial court on the ground of lack of jurisdiction at Bhatinda Court as the parties never resided at Bhatinda, on the ground of wrong assessment of income of Rs. 1,000/ - permonth, on the principles of res -judicata as previous application under section 488 Cr. P. C. was dismissed by Shri M. S. Sehmee, Judicial Magistrate, 1st Class, Bhatinda, besides asserting the illegality of the ex parte order. The learned counsel for the respondent on the other hand, contended that the ex parte order was passed on 6 -7 -71 and it was not got set aside within three months as provided. under proviso to sub -section (6) of section 488 besides urging that the evidence on the file justified the jurisdiction of the Bhatinda court and quantum of maintenance. It was also contended that there was nothing on the file showing that the previous application was dismissed merits and that application would not operate as bar on the principle of res judicata. The law is now well settled in view of the findings of the major in Full Bench of the Punjab and Haryana High Court in Joginder Singh v. Balkaran Kaur reported in 1971 P.L.R. at page 679 (P. B.). that the limitation for setting aside an ex parte order as provided by proviso to sub -section (6) of section 488 of the Criminal Procedure Code, 1898 is to be reckoned from the date, on which the husband acquired knowledge, actual or constructive of the said order, so in the instance case the constructive knowledge of the petitioner will have to he assumed since his counsel was present on 6 -7 -1971 when he filed an application for exempting the presence of the petitioner due to illness. So the husband had lost his right provided by the aforesaid proviso for getting the ex parte order set aside from the aforesaid Magistrate. It is also now well settled that the above referred proviso to sub -section (6) is applicable to the trial court for setting aside the ex parte order.;