' The petition is addressed against the order of Sessions Judge, Mirpur, passed on May 31, 1989, whereby order of Magistrate 1st Class, Mirpur recorded on March 9, 1989, was maintained.
2. The petition has arisen out of proceedings under section 488, Cr.P.C. Undertaken at the instance of Shabbir Hussain, Asif Hussain and Shafique Hussain, minor sons of the petitioner. The minors moved the Magistrate Ist Class, Mirpur having territorial jurisdiction in the matter under section 488, Cr.P.C. It was alleged that the minors were sons of the petitioner. The petitioner-father despite having sufficient means, neglected and refused to maintain them. The minors having no legitimate means of subsistence, required maintenance allowance to be paid by their father. The petitioner failed to appear despite service, therefore, ex parte order was passed against him on October 30, 1987. The petitioner was ordered to pay the maintenance allowance to the minors @ Rs,350 p.m.
Each to Shabbir Hussain and Asif Hussain and Rs,200 p.m. To Shafique Hussain. Thus, he was ordered to pay a sum of Rs,900 p.m. To the minors w.e.f, the date of institution of the application.
Subsequently, the minors applied for execution of the order of the Court in the manner of recovery of arrears of maintenance allowance w.e.f, January 29, 1987 to January 28, 1988, for a period of one year. Notice was issued to the petitioner. During the pendency of the execution proceedings, the petitioner appeared before the Court. Later on, he applied for setting aside the ex parte order. The application was moved on June 6, 1988. It was stated that the petitioner had no knowledge of proceedings against him under section 488, Cr.P.C. As he was not served at any stage. It was also alleged that Asif Hussain, one of the minors, remained in the custody of the petitioner but the custody was restored to the mother by the High Court on an application under section 491, Cr.P.C.
Moreover, the mother of the minors was living separately on her .Own choice. In the circumstances, the petitioner was not responsible to meet the expenditure of the minors, It was also maintained that the petitioner was unemployed, as such was unable to pay the amount of maintenance allowance as directed by the Court. The application was dismissed by the Magistrate. A revision petition was addressed against the same unsuccessfully.
3. Mr. Abdul Latif, the learned counsel for the petitioner contended that ex parte order was passed illegally as the petitioner was not served in compliance with the provisions of rules of procedure.
The learned counsel sought modification of the order of maintenance allowance by pleading that the petitioner had no sufficient means to pay the requisite maintenance allowance to the minors, The petitioner stated at the Bar that he was prepared to maintain the minors provided they lived with him and not otherwise. Ch. Muhammad Akhtar, the learned counsel for the minors supported the impugned order. It was elaborated that the petitioner joined the proceedings on different dates of hearing and ultimately absented himself when the ex parte evidence of the minors was recorded and final order was passed against him.
4. On an action under section 488, Cr.P.C. The Magistrate having territorial jurisdiction, was empowered to order payment of the maintenance allowance in the light of the facts of the case.
Subsection (6) postulated that all evidence in proceedings under section 488, Cr.P.C. Shall be taken in presence of the husband or father, as the case may be, provided if the Magistrate was satisfied that the husband or father was wilfully avoiding the service or wilfully neglecting to attend the Court, the Magistrate was authorized to proceed to hear and determine the case ex parte. Any order passed ex parte was liable to be set aside for good cause to be shown within three months from the date of the order. In the present case, it appears from the record that notice was issued to the petitioner-father for his appearance on February 15, 1987. Second time, fresh notice was issued for appearance on February 26, 1987. He was served on February 25, 1987 but he failed to turn up.
The trial Magistrate ordered fresh notice. On April 11, 1987, the petitioner was present when the case was adjourned to April 28. On that date, the petitioner was again present and the case was adjourned for his written statement, to May 11, 1987. On that date, he was given an adjournment for filing written statement. On May 18, 1987, the next date, the petitioner was absent on which bailable warrant was issued. On June 3, 1987, the petitioner again appeared and sought adjournment for filing written statement. Again, he abstained on two dates of hearing and appeared on July 12, 1987 but on that date, the Magistrate was occupied in other business. Thereafter, the petitioner failed to appear on next three occasions. On October 7, 1987 he was present when the Magistrate directed the minors to lead their evidence. On October 10, 1987, on account of absence of the petitioner, ex parte proceedings were ordered and minors were asked to produce their evidence. On recording ex parte evidence, ex parte order was passed against the petitioner on November 30, 1987. The aforesaid state of facts is recapitulated in order to ensure that the petitioner was served and thereafter he appeared on different dates but ultimately absented himself, on which ex parte order was passed against him. The record of the trial Magistrate provides ample proof of the fact that the petitioner wilfully avoided and neglected to attend the Court to enable it to decide the application. The explanation rendered by the petitioner in order to get the ex parte order set aside, is completely refuted by the aforesaid proceedings recorded by the trial Magistrate. Therefore, on facts, the explanation advanced by the petitioner to get the ex parte order set aside, is devoid of force. I find no reason to record my disagreement with the concurrent finding of the subordinate Courts on the 'point.
5. Under law, it was enjoined upon the petitioner to move an 'application to get the ex parte order set aside within three months from the date of the order. The application is patently beyond time.
There is no substance to condone the delay. The record, rather, speaks against the claim of the petitioner. The application of the petitioner is available at page 11 of file No,3 of 1988 of the trial Magistrate. By virtue of that application, the petitioner is shown to have volunteered to appear in the Court in execution proceedings. There is another application of May 22, 1988 at page 12 of the file wherein it is explained that the petitioner was prosecuting his defence against application under section 488, Cr.P.C. During the proceedings he developed urine obstruction, as such he could not appear in the Court due to which ex parte proceedings were ordered against him. This obviously negates the claim of the petitioner to set aside the ex parte order. The rule of limitation applicable to the present case is that the application , to set aside the order must be moved from the date of the order and not from the date of knowledge. This proposition was answered in A.S. Govindan's case AIR 1950 Mad. 153, wherein it was observed:-- "The period of three months does not mean three months from the date of knowledge of the order.
Where the application is made more than three months from the date of the order, it is liable to be dismissed.
' Thus, the presence of the admission that the petitioner had the knowledge of the proceedings against him and that he remained absent on account of some ailment or otherwise, leads to the inference that despite having knowledge of the proceedings, he failed to seek the desired relief. He was late in bringing his application. The delay is obviously not condonable.
There is no force in the petition. I find no reason to record my disagreement with the concurrent finding of the subordinate Courts. The petition is dismissed.