Posted On by &filed under High Court, Karnataka High Court.


Karnataka High Court
Khembai vs Kajindar on 8 September, 1980
Equivalent citations: 1981 CriLJ 690
Bench: M Patil


ORDER

1. This revision is directed against the order dated 22-11-1978 passed by the Additional Sessions Judge, Bijapur in Criminal Revision Case No. 28/78 on the file of his court whereby he having set aside the order passed by the Judicial Magistrate First Class, (II Court), Bijapur in Misc. Application No. 141/78 directed to hear the Criminal Misc. Case No. 48/74 on the merits.

2. The petitioner made an application in Criminal Misc. Case No. 48/74 claiming maintenance as provided under Section 125 Cr.P.C. on the ground that the respondent neglected and refused to maintain her. In pursuance of notice served on him the respondent appeared, but at the subsequent stage he remained absent. The learned Magistrate however proceeded to record evidence in his absence and made final order directing him to pay maintenance of Rs. 50/- per month to the petitioner.

3. Since the respondent failed to pay the maintenance, the petitioner made an application in Criminal Misc. No. 63/75 for enforcement of that order. The respondent having failed to pay the maintenance suffered imprisonment for one month. Thereafter also when he failed to pay maintenance as ordered, the petitioner made another application in Misc. Application No. 292/1977, for enforcement of the order. On service of the notice of the application, the respondent made an application in 141/78 for setting aside the original order of maintenance on the ground that it had been passed ex parte and without compliance of the provisions of law. Since he made that application after lapse of more than 3 years of the original order of maintenance made against him, the learned Magistrate dismissed the application on the ground that it was barred by time. On revision the Sessions Judge following the decision of this court in State v. Bhimarao (1963 (2) Cri LJ 293) allowed the revision, set aside the order made by the Magistrate both in Misc. 141/78 and 48/74 and directed the Magistrate to make fresh inquiry into the application made under Section 125 Cr.P.C. in Misc. No. 48/1974 and dispose of the same in accordance with law.

4. Being aggrieved, the petitioner has approached this court in revision.

5. It appears there are no substantial reasons to interfere with the order made by the Sessions Judge. To such a case as laid down by this Court in The State v. Bhimrao, 1963 (2) Cri LJ 293 the period of limitation of three months referred to in proviso to sub-section (2) of Section 126 has no application. Because proceeding to hear the application in Misc. No. 48/74, in the absence of the respondent, the learned Magistrate, did not record his satisfaction that the respondent was deliberately avoiding to appear.

6. Therefore there is no merit in this revision. The revision is liable to be dismissed and it is accordingly dismissed.

7. Since it is an old matter, it is directed that parties shall appear before the Magistrate on 21st October, 1980, and the Magistrate shall inquire into the application expeditiously in accordance with law within two months of the appearance of the parties before him.

8. Petition dismissed.


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