BERT, J. - (1.) BY his order dated 6-1-1970 the learned Additional Sessions Judge, Ganganagar, recommends that the order of the Sub-Divisional Magistrate, Hanu-mangarh dated 26-2 1969 rejecting the husband's application for setting aside an ex parte order of maintenance passed against him on 4-7-1966 be set aside and the learned Magistrate be directed to dispose of the application afresh according to law.
(2.) FACTS, which it is necessary to notice for the disposal of this reference, briefly stated are these. Smt Gurdev Kaur made an application for maintenance under sec. 488 of the Code of Criminal Procedure against her husband Bhur Singh. A notice was issued for the husband to appear and answer the application on 8-10-65. He was absent on that day and the case was adjourned to 26-10-1965 and the husband did not appear. There were subsequent dates of hearing and the husband did not appear. On 25-11-1965 the learned Sub-Divisional Magistrate Hanuman-garh decided to proceed ex-parte against the husband and eventually on 4-7-1966 he passed an ex parte order of maintenance fixing the maintenance allowance at Rs. 50 per month. The husband made an application on 8 8-1966 for setting aside the ex parte order. The learned Magistrate dismissed the application on 26-2-1969 on the ground that the' application was barred by time in view of the provisions of sec. 488 sub-sec. (6) and proviso there to The husband preferred an application by way of revision before the learned Additional Sessions Judge, Ganganagar, who has expressed the opinion that the period of limitation is to be counted from the date on which the husband learnt about it, and he has made a recommendation as indicated earlier. Mr. Pyarelal, learned counsel for the wife, opposes the reference and Mr. Lekhraj Mehta supports it. On a close examination of the orders passed by the courts below I am of the opinion that it is a futile controversy. Sub-sec. (6) of sec. 488 Cr. P. C. reads as follows : "s. 488 (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, or 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" Note - The italic is mine. There is no controversy that the final order determining the maintenance allowance was made on 4-7-1966 and the application for setting aside this order was made within 3 months, namely, on 8-8-1966. The simple but interesting question that arises for consideration is whether the words "may proceed to hear and determine the case ex parte" mean the final order of fixing the maintenance allowance or the order for proceeding ex prate. The key word in the relevant part of the clause is "determine". In the Oxford Dictionary the word "determination" means "the ending of a controversy or suit by the decision of a judge or arbitrator, judicial or authoritative decision or settlement (of a matter at issue) the settlement of a question by reasoning or argumentation". On a plain grammatical meaning, therefore, the word "determine" in the context aforesaid means the final fixation of the maintenance allowance and not the interlocutory order when the Magistrate decides to proceed ex parte. The word "determination" in Art. 136 of the Constitution came to be considered by their Lordships of the Supreme Court in Jaswant Sugar Mills Ltd. Meerut vs. Lakshmichand (i) and it was held that the expression "determination'* in the context in which it occurs in Art. 136 signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The conclusion of the controversy is an essential ingredient of the word "determination. " In Rama Shankar vs. Mst. Hubraji (2) at page 409 the word "determination" has been taken to connote the idea of final determination and not a mere opinion or finding. The period of limitation is, therefore, to commence from the date when the final order of maintenance allowance is made. When so constructed the application made by the husband was within time and both the learned Magistrate and the Additional Sessions Judge mis-directed themselves when they started examining the question from the point of knowledge. I therefore, hold that the application made by the husband was within time. I remand the case to the learned Sub-Divisional Magistrate, Hanumangarh, with a direction that he may decide whether the husband has shown good cause for setting aside the ex parte order of maintenance allowance made against him. He shall not be influenced in the determination of the case by any observation made by the learned Additional Sessions Judge in his order of reference. .;