Shiv Dayal Soni vs Prabha Soni and Others

K.S. Chauhan, J.—This criminal revision u/s 397 read with Section 401 of the Code of Criminal Procedure has been preferred being aggrieved by the judgment dated 10.08.2007 passed by the First Additional Principal Judge, Family Court, Jabalpur in MJC No. 18/2007, whereby the application filed by applicant u/s 126(2) of Code of Criminal Procedure has been rejected.

The brief facts of the case that the Respondents filed an application u/s 125 of Code of Criminal Procedure, whereby MJC No. 467/01 was registered in the Court of JMFC, Jabalpur for awarding the maintenance. Notice was issued against the applicant but he did not appear in the Court hence proceeded ex parte. The statement of Smt. Prabha Soni (A.W. 1) was recorded. The application was decided on 25.01.2001, whereby the application was allowed and the applicant was directed to pay the maintenance allowance at the rate of Rs. 2,000/ per month to Respondent No. 1, Smt. Prabha Soni and Rs. 1,000/ each per month to the Respondent Nos. 2 and 3. The applicant filed an application u/s 126(2) of Code of Criminal Procedure for setting aside the ex parte proceedings. MJC No. 18/07 was registered. The notice was issued to the Respondents. They entered their appearance and filed the reply denying the averments made by the applicant. But subsequently she remained absent and proceeded ex parte. Applicant Shiv Dayal Soni examined himself. After hearing the arguments, First Additional Sessions Judge, Family Court, Jabalpur passed order on 10.8.2007 and rejected the application u/s 126(2) of Code of Criminal Procedure filed by the applicant. Being aggrieved by that order the instant revision has been preferred.

Shri A.K. Soni, learned Counsel for the applicant mainly submitted that the notice was not sent at the correct address. The applicant never refused to take the notice, therefore, proceeding ex parte is illegal, which deserves to be set aside. The Court below has committed an illegality in rejecting the application u/s 126(2) of Code of Criminal Procedure.

On the contrary, Shri Arun Kakonia, learned Counsel for the Respondents submitted that the applicant willfully avoided the service of notice, therefore, he was rightly proceeded ex parte. The Court below has rightly rejected his application u/s 126(2) of Code of Criminal Procedure

The main point for consideration in this revision is that whether the Court below has committed any illegality in rejecting the application u/s 126(2) of Code of Criminal Procedure filed by the applicant.

On perusal of the record, it reveals that the notice against the applicant in MJC No. 467/01 was sent by registered post A/D. The Postman tried from 24.7.2001 upto 31.7.2001 and returned the envelope with the remark of refusal, thus, there is nothing to disbelieve this endorsement. It is established principle of law that refusal amounts to acceptance, therefore, the Court below has rightly proceeded ex parte against the applicant in MJC No. 467/01 and decided the matter.

The applicant was proceeded ex parte on 9 8 2000 and order passed on 25 1 2001. He filed an application u/s 126(2) of Code of Criminal Procedure on 22.09.2001. Thus, this application was filed after near about 8 months. According to the provisions of Section 126 of Code of Criminal Procedure the ex parte order may be set aside for good cause shown if the application moved within three months from the date of order. Thus, the application is not filed within the prescribed period. The period is to be counted from the date of order and not from the knowledge of the order. Thus, the application was filed beyond the period of limitation. On perusal of the record, it reveals that the Court below summoned the concerned Postman Shambu Dayal Nema and he appeared in the Court on 12.6.2007, but nobody appeared on behalf of the applicant to examine him hence there is no reason to disbelieve on the endorsement made by Postman on that envelope. Since he has willfully avoided the service of summon therefore rightly proceeded ex parte and the Court below has committed no illegality in rejecting the application u/s 126(2) of Code of Criminal Procedure. This revision is meritless deserves to be dismissed.

Consequently, this revision fails and is dismissed accordingly.