S. Bhupinder Singh Makkar vs Smt. Narinder Kaur And Others
1990 Latest Caselaw 108 Del

ORDER

1. This petition has been brought under Section 401 read with Section 482 of the Code of Criminal Procedure (for short 'the Code') seeking quashment of the order dated January 25, 1985, passed by Ms. Deepa Sharma, Metropolitan Magistrate, New Delhi, by which she allowed the petition moved by respondent No. 1 under Section 125 of the Code and awarded maintenance to respondent No. 1 and respondent No. 2. This was an ex parte order granting maintenance.

2. Counsel for the petitioner has challenged the impugned order pleading that no proper service of the notice issued under Section 125 read with Section 126 of the Code had been effected on the petitioner and the mode of service adopted by the learned Magistrate by issuance of registered notices and ultimately publication of a notice in a newspaper was not in consonance with the procedure for effecting service envisaged in the provisions of the Code and thus, on the face of it the ex parte order made against the petitioner was illegal. He had also urged that the newspaper in which the publication had been effected was an unknown newspaper and had no circulation in Ludhiana where the petitioner is admittedly residing and even no copy of the newspaper had been set at the address of the petitioner as is required by law. He has further urged that the petitioner had come to know about the ex parte order only in the last week of May, 1988 through his brother-in-law when non-bailable warrants of arrest of the petitioner and warrants of attachment of his moveables were sought to be executed and thus, the petitioner could not move the learned Magistrate under Section 126 of the Code for setting aside of the ex-parte order inasmuch as limitation for filing such an application had already expired.

3. The learned counsel for respondents 1 & 2 has, on the other hand, contended that no resort to inherent powers of this court can be made till the petitioner had exhausted his legal remedies available under Section 126 and under Section 401 of the Code. He has also urged that even revisional powers of the Court cannot be exercised till the petitioner had taken benefit of remedy available under Section 126 of the Code itself. On merits, the learned counsel for respondents 1 & 2 has contended that despite repeated efforts made by the learned Magistrate to effect service of notice on the petitioner in accordance with the provisions of the Code the service could not be effected as the petitioner at one time refused to accept the notice and on the other occasion had avoided to accept the notice and thus, as an extra caution the learned Magistrate had sent repeated registered notices to the petitioner which the petitioner avoided to receive and ultimately service by publication was also effected and thus, in the present case the learned Magistrate has rightly proceeded ex parte against the petitioner who had deliberately avoided to appear in the proceedings.

4. The first question to be decided in the present matter is whether the petition under Section 482 of the Code is maintainable or not against the impugned order. Section 126(2) proviso clearly lays down that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully neglecting to attend the court the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

5. In State v. Ku. Tukkanna, 1984 Rajdhani LR 523 : (1984 Cri LJ 1866) a similar question came up for consideration. A single Judge of this court clearly held that it is now too well settled that inherent powers of the court have to be very sparingly exercised to prevent abuse of the process of court or to otherwise secure the ends of justice and they cannot be invoked if there is specific provision in the Code for the redress of the grievance of the aggrieved party and the same should also not be exercised as against express bar of law engrafted in any other provision of the Code. The learned judge made reference to Madhu Limaye v. State, , Raj Kapoor v. State, and some other judgments of the Supreme Court which were relied upon for this proposition. In the said case the revisional power of the court envisaged in the code was resorted to and there after a petition under Section 482 of the Code was filed. The court clearly held that the inherent powers of the court cannot be exercised in view of the bar contained in Section 397(2) & (3) of the Code. In Jagir Singh v. Ranbir Singh, a revision against the order of the Magistrate was decided by a Sessions Judge and a second revision was sought to be made before the High Court. The Supreme Court clearly held that the object of Section 397(3) of the Code is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of other authority. The language of Section 397(3) of the Code is clear and peremptory and it does not admit of any other interpretation. In another judgment of the Supreme Court in the case of Rajan Kumar Machananda v. State of Karnataka, (1987) 5 JT 637 (1), it has been now clearly laid down that resort to inherent powers of the High Court cannot be had if there is other remedy available in the Code to the aggrieved person.

6. The learned counsel for the petitioner has urged that in accordance with the provisions of Section 126(2) proviso the limitation for filing the application before the Magistrate for setting aside of an ex-parte order is three months from the date of the order and that period had expired long back, so the petitioner could not take resort to that remedy. There is conflict of Judicial decisions as to whether the period of limitation is to be counted from the date of order or from the date of the knowledge.

7. In Amal Guha v. State, 1989 Cri LJ 488, a Division bench of Calcutta High Court has taken the view that the limitation commences from the date of the order. However, a single Judge of this Court in Balbir Singh v. Prem Wati, 1970 Cri LJ 1302, has clearly held that limitation in such a case commences to run from the date of the knowledge of the order to the aggrieved party and not from the date of the passing of the order. Reliance has been placed for this view on a judgment of the Supreme Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, , where the expression "the date of the award" was held to mean the date when the award was either communicated to the party or was known by him either actually or constructively. At any rate, it cannot be disputed that the petitioner could have moved an application for setting aside of the ex parte order before the Magistrate concerned under Section 126(2) proviso and in case the limitation had expired, according to him, commencing from the date of the order he could always seek condensation of delay by moving an application under Section 5 of the Limitation Act. In Bina Ganguli v. Rash Behari Ganguli, 1983 Cri LJ 1672, a single Judge of the High Court of Calcutta has mentioned about the divergence of judicial decisions as to from which date the period of limitation commences, whether from the date of the order or date of knowledge and had noted down the judgments taking the different views on the point but had come to the conclusion that in any case resort could be had to provision of Section 5 of the Limitation Act, 1963, for getting condoned the delay in moving such application if the limitation is deemed to have expired calculating from the date of the order. So, it cannot be argued that any sense of rationality that the petitioner had no remedy whatsoever for moving the learned Magistrate for setting aside of the ex parte order under Section 126(2) proviso as limitation had expired for moving such an application if the limitation was to be calculated from the date of the order. The petitioner who claims that he had no knowledge of the proceedings and had come to know about the proceedings and the order only in the last week of May, 1988, could have immediately moved an application before the Magistrate along with an application under Section 5 of the Limitation Act, for setting aside of the ex parte order instead of filing the petition under Section 482 of the Code in this Court. So, I hold that inherent powers of this Court cannot be exercised in such a case where the petitioner had the efficacious remedy of moving the Magistrate concerned under Section 126 of the Code itself for setting aside of the ex parte order.

8. However, the matter does not end here. In the opening of the arguments, the learned counsel for the petitioner did not urge that if inherent power of this Court cannot be exercised by resort to provisions of Section 482 of the Code then the petition be treated as a revision petition under Section 397 but when counsel for the petitioner realised that perhaps the inherent powers cannot be exercised he pointed out in his rejoinder arguments that in fact, the present petition has been filed not only under Section 482 of the Code but also under Section 401 of the Code invoking the revisional powers of this Court as well. The learned counsel for respondents 1 & 2 was again heard on this point but the learned counsel for respondents 1 & 2 argued that even revisional powers of this Court cannot be exercised till the petitioner had moved an application under Section 126 of the Code before the Magistrate concerned. He has made reference to Mohd. Shaffi v. Mst. Amtul Nisa Begum, (1969) 71 Pun LR (D) 296. In this judgment, it was held by a single Bench of this Court that it is well settled that inherent powers of this Court are to be exercised very sparingly and in very exceptional cases only and as a general rule powers are not to be exercised in cases where the aggrieved party has another remedy open to him but has not availed of that remedy. On merits, the court came to the conclusion that present was not such a case where inherent powers of the court should be exercised. An argument was pressed before the court that the court may suo motu exercise its powers of revision. The Court held that it was not a fit case for exercising suo motu power of revision although the Hon'ble Judge noticed the law laid down in Criminal Revision No. 322 of 1967, S. Amrik Singh Layalpuri v. Lady Dr. P. K. Kapilal, that the suo motu powers of revision should be exercised by the court in rare cases and only when non-interference will cause a grave failure of justice. This judgment is of no help to respondents 1 & 2 inasmuch as in the present case the petition has been filed not only under Section 402 of the Code but also under Section 401 of the code.

9. Counsel for respondents 1 & 2 has also made reference to State of Mysore v. Ghousuddin, 1972 Cri LJ 808, in which a single Judge of Mysore High Court had held that revision petition against the ex parte order of maintenance is not maintainable unless the husband before coming in revision had applied to the Magistrate to set aside the ex parte order. I have gone through this judgment and find that no reasons have been given as to why two remedies are available to a particular aggrieved person why he should not be allowed to exercise both the remedies one after the other or one remedy which according to him would remove his grievance. It is evident that in a particular case the petitioner has to prove certain facts in order to show good cause to the satisfaction of the Magistrate for setting aside of the ex parte order. The aggrieved person cannot rush to the High Court with a revision because a criminal revision has to be decided on the existing record of the Magistrate and the scope of the revision is also circumscribed by the ingredients mentioned for exercise of such power in the Code. But where on the face of the record itself an aggrieved petitioner can show any illegality in the procedure or impropriety in exercise of any power of the Magistrate, there is no bar for such a petitioner to straightway file a revision petition in the High Court without first moving an application before the Magistrate under Section 126 of the Code. So, it will depend on the facts of each case to decide whether resort to the revisional power is possible or not by an aggrieved person before first exercising his remedy available under Section 126 of the Code itself.

10. In Biswanath Kabi v. Susama Dei, (1988) 1 All Cri. LR 692, a single Judge of Orissa High Court had clearly laid down, in my view, rightly that it is not mandatory for the aggrieved person to move an application before the Magistrate concerned under Section 126 of the Code for setting aside of the ex parte order and such an aggrieved person can move the High Court by filing a revision. It was opined that nowhere it has been provided in the Code that unless the husband takes recourse to first remedy the second remedy is not available to him according to law. It was observed that there may be cases in which after an ex parte decree is passed against a husband he may not like to move for setting aside an ex parte order but may invoke the jurisdiction of the revisional court itself. It will depend on the facts of each case in order to decide whether revisional power of the court should be exercised in a particular case or not, but a revision petition cannot be dismissed at the threshold that the aggrieved person must take resort first to remedy provided in Section 126 of the Code. It is not necessary to refer to two other judgments brought to my notice by the learned counsel for respondents 1 & 2 of other High Courts wherein some view has been taken as in the case of State of Mysore v. Ghousuddin (1972 Cri LJ 808) (supra) because in those judgments also reasons which have been given by me and also by a single Judge of Orissa High Court have not been taken note of.

11. The learned counsel for respondents 1 & 2 has then urged that no certified copy of the impugned order having been filed at all although an application was moved along with the petition seeking permission to file the petition without filing the certified copy with the undertaking that the same would be filed as soon as it was made available and the Court having granted limited exemption in this respect, the revisional power cannot be exercised as the revision has become time barred for want of filing the certified copy of the impugned order in this case. He has made reference to Prithi v. State etc., 1974 Rajdhani LR 479, wherein it has been laid down that if certified copy of the impugned order is not filed the petition can be dismissed as time barred. Similar view was taken in Phoola v. M.C.D. (1975) 1 FAC 467 (Delhi), but in this judgment also it was held that there is no limitation for exercising suo motu power of revision by the court. However, the Supreme Court in the case of Raj Kapoor v. State, , has set the controversy at rest on this point. It has been held that the revision can not be dismissed on procedural technicalities. It was also held in this very judgment that once the record of the lower court is before the High Court, the revision petition should not be dismissed only on the ground that certified copy of the impugned order has not been filed. In Municipal Corporation of Delhi v. Girdharilal Sapuru, , it has been clearly laid down that the revision should not be dismissed by the High Court on the technical ground of limitation and the High Court should exercise suo motu power of revision and could not allow to perpetuate illegality and miscarriage of justice. So, it cannot be held that this court would not exercise the revisional power if it is a fit case for taking resort to such power only on the ground that certified copy of the impugned order has not been filed on the record by the petitioner. So, I negative this contention of the learned counsel for respondents 1 & 2.

12. The learned counsel for the petitioner has contended that nowhere in the proceedings of the lower court the learned Metropolitan Magistrate has recorded its finding that the petitioner has fitfully avoided service or willfully neglected to attend the court and thus, the Magistrate was not justified in proceeding ex parte against the petitioner. He has made reference to Dhani Ram v. State, 1974 Cri LJ 1234 (All). In this case, on facts it was found that no attempt had been made to effect service on the applicant by taking recourse to the procedure prescribed by Section 72 of the Old Code of Criminal Procedure (for short 'the Old Code') and registered letter only had been sent which came back undelivered and then notice was got published in a newspaper having circulation at Aligarh only had been sent which came back undelivered and then notice was got published in a newspaper having circulation at Aligarh only where as applicant was residing in Delhi. It was held by a single Judge of Allahabad High Court that in a case which has to be decided in accordance with the procedure prescribed by the Old Code there is no provision for effecting service on a party either by registered post or by publication in the newspaper and the Magistrate was, thus, unjustified in assuming that the applicant had been sufficiently served and had designedly failed to appear before him. This judgment is given on peculiar facts of its own case and has not laid down any board proposition of law that unless and until the Magistrate in his orders specifically records his satisfaction that the particular respondent is willfully neglecting to attend the court or is willfully avoiding service, the Magistrate cannot proceed ex parte against that party. If, in my opinion, there is sufficient material available on the record from which such a satisfaction could have been reached by the Magistrate then it is immaterial whether such satisfaction had been couched by the Magistrate in the language of the Code or not. Counsel for the petitioner has also made reference to Hemendra Nath Chowdhury v. Smt. Archana Chowdhury, AIR 1971 Cal 1244 : (1971 Cri LJ 817). The facts in this case were that there had been no conformance to the mandatory provisions of the Code. The process Server had without any order of the Magistrate effected service by affixation and that too without conforming to the provisions of Section 70 or Section 71 of the Code and the said service was accepted as good service by the Chief Presidency Magistrate. It was also found that there was no material on the record to establish as provided for under Section 70 of the Code that the person concerned could not be found by the exercise of due diligence and that there was any attempt to serve the summons by leaving one of the duplicates meant for the person summoned with some adult male member of his family. The material on the record further ruled out compliance with the provisions of Section 71 of the Code and it was held that the service so effected was bad in law vitiating the ex parte order. So, the judgment had been delivered on the facts of the case and not only on the ground that the Magistrate had failed to record his satisfaction with regard to the aforesaid matter in any of his orders.

13. Counsel for the petitioner has also cited Biswanath Kabi v. Susama Dei, (1988) I All Cri LR 692 (Orissa), wherein again from the evidence appearing on the High Court found that the party has not willfully neglected to attend the court although the single Judge of Orissa High Court in this judgment had laid down that before the Magistrate proceeds to hear and determine the case ex parte, the Magistrate must record his satisfaction that the person is willfully neglecting to attend the court. But the impugned judgment is based on clear finding that there was no evidence to show that the party was willfully neglecting to attend the court. So, it cannot be said that mere fact that the Magistrate fails to record his satisfaction in writing regarding the person willfully neglecting to attend the court or willfully avoiding the service would vitiate the ex parte order. It will depend on the facts of the case in order to determine weather the Magistrate had rightly proceeded ex parte against a particular party and satisfaction could have been reached or not with regard to the factum of petitioner willfully avoiding service or willfully not attending the court.

14. Counsel for the petitioner also placed reliance on Bhabeswar Deka v. Smt. Kusum, Deka, (1989) I Crimes (SN) 182 (Guj). The complete judgment is not reproduced. So, we do not know the facts of the case. The important point mentioned in the editorial note is that the Magistrate shall have jurisdiction to proceed ex-parte only when he is satisfied that the person is willfully neglecting to attend the court. There is no dispute about such proposition of law.

15. Lastly, counsel for the petitioner has also sought some support from the observations appearing in Muthusamy v. Kalaarasi, (1998) 3 Crimes 27, in which it has been observed by a single Judge of Madras High Court that the Magistrate before proceeding ex parte must record his finding that the husband was either willfully avoiding service or willfully neglecting to attend the court. The learned judge had examined the facts of the case and then come to the conclusion that no such satisfaction could have been reached by the Magistrate. So, the judgment is based on facts appearing in that case.

16. Before I deal with the contention of the learned counsel for the petitioner that there was no material appearing on the record which could have justified the magistrate that the petitioner was willfully avoiding service, it is necessary to refer to the proceedings of the trial court. The Magistrate vide order dated February 21, 1983, had directed issuance of notice to the husband on deposit of necessary process fee and also by registered A.D. for March 26, 1983, the learned Magistrate again directed issuance of registered notice to the husband and also directed issuance of a notice through Chief Judicial Magistrate concerned as well. The next date given was May 12, 1983. The registered envelope came back with the report of the Postman that despite repeated visits to the house of the husband, the husband refused to accept the same. The notice which was sent for service through the Chief Judicial Magistrate did not come back. The Magistrate on May 12, 1983, directed issuance of fresh notices in the similar manner returnable by May 25, 1983 and again July 14, 1983 and August 27, 1983. In the last order, summons were also directed to be issued through the Superintendent of Police. The registered notice sent came back with the report that the petitioner was not being met despite repeated visits. The notice sent through the Superintendent of Police, Ludhiana, came back with the report that the petitioner was not met. Fresh notices were again got issued returnable by October 7, 1983 and November 25, 1983. The summons were received back with the report of the police dated November 15, 1983, that the petitioner had refused to accept the service. The Magistrate still directed issuance of fresh notices for subsequent dates repeatedly and the registered notices were received back with the reports that the petitioner was not being met despite repeated visits. Thereafter substituted service was got effected by publication of a notice in the Punjabi newspaper, namely, 'Jag Bani'. The question which arises for consideration is whether the Magistrate had followed any illegal procedure in effecting the service of the notice on the petitioner.

17. The proceedings under Section 125 of the Code are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy is ordinarily a helpless person (See Mst. Jagir Kaur v. Jaswant Singh, . Counsel for the petitioner, has vehemently argued that no other mode of effecting service on the petitioner could have been adopted by the learned. Magistrate except the mode provided in the Code. He has cited Ram Chand Saudagar Ram v. Jiwan Bai, , wherein the single Judge of the said High Court had held that the proceedings under Section 488 of the Old Code are quasi-civil in nature but that does not mean that the Magistrate dealing with them gets all the powers of a civil court or that all the rules governing the civil proceedings can be imported. The short question before the court was whether a second petition under Section 488 of the Code is maintainable or not ? It was clearly held that Section 403 of the Code does not bar a second application under Section 488 of the Code on the same facts. The judgment is given in a different context completely.

18. Counsel for the petitioner has contended that when power is conferred then the same has to be exercised in the mode prescribed in the statute and in no other way and he has also made reference to State of Uttar Pradesh v. Singhara Singh, , which lays down this particular principle. Counsel for the petitioner has also cited Dhani Ram v. State 1974 Cri LJ 1234, wherein it has been laid down by a single Judge of the Allahabad High Court that under the Code there is no provision for effecting service on a party or a witness in any manner other than that provided by Chapter VI of the Code and there the service of the notice of the proceeding under Section 488 (Old Code) by registered post or by publication in the newspapers is unwarranted.

19. It is true that while dealing with the petition under Section 125 of the Code, the court has to follow the procedure in the Code and it cannot take resort to the procedure prescribed in the Code of Civil Procedure or in any other statute. However, where not only the procedure prescribed in the Code has been followed in order to make efforts to effect service on the opposite party but as a precaution any other mode of effecting service has been adopted, the order proceeding ex parte would not be vitiated on that score alone. Similar question arose for decision before a single Judge of this Court in Shashi Kumar Nayak v. Smt. Raj Laxmi, 1979 Chand LR (Cri) 61 (Delhi). In the said case also a registered summons had been issued besides the summons was issued as laid down under Sections 62 to 66 of the Code. It was held in this judgment that there can be no quarrel with the proposition that a person summoned under the Code has to be served in the manner provided in the aforesaid Sections 62 to 66 but there is no legal bar to the service of the summons on a person by a registered post in addition to the prescribed mode, as the whole object is to make the person summoned aware of the proceedings being taken against him. The learned Judge has followed the same principle of law laid down in Sunil Kumar Phukan v. Mt. Pratima Buragohain, 1973 Cri LJ 401 (Gauhati). I entirely agree with the reasoning given in this judgment. It is true that if the mode laid down in Sections 62 to 66 of the Code for effecting service is not at all resorted to by the Court, then an argument would be available that no proper service has been effected on the opposite party as the mode of service laid down in the Code had not been followed. But where not only the mode of service laid down in the Code is followed but in addition, some other process is also issued like sending the summons by registered post or by publication of the notice in the newspaper, it cannot be said that in such a case the ex parte order made against the opposite party would be invalid only on the ground that additional mode of service had been followed which is not contemplated by the Code.

20. I may mention that in the case of Arunkumar Surajmal Jain v. Chandanbai Rupchandsa Jain 1981 Mat LR 73 : (1980 Cri LJ 601), a single Judge of Bombay High Court has also laid down the law that it is not necessary for the court to have recorded reasons for its satisfaction that the husband has willfully avoided the service or willfully avoided to appear in court if from the material on the record such satisfaction could be reached. I endorse the statement of law on this point. After all it is a question of fact to be seen from the material appearing on the record whether a particular party has willfully avoided the service of summons or has willfully avoided to appear in court and even though the magistrate might not have recorded his reasons for reaching such satisfaction in so many words in the proceedings, still the order of the Magistrate to proceed ex parte against a particular party can be sustained if the court could come to the conclusion after examining the record that the husband had willfully avoided the service or willfully avoided to appear in court. So, the sole question which remains to be decided in the present case is whether the Magistrate was legally right in proceeding ex parte against the petitioner on the basis of the material appearing on the record.

21. Counsel for the respondents 1 & 2 has vehemently argued that while exercising the power of revision the court is not to sit in appeal and appraise the evidence and he has made reference to State of Orissa v. Nakula Sahu, 1979 Cri LR (SC) 64 : (1979 Cri LJ 594), wherein it was laid down that normally the jurisdiction of the High Court under Section 439 (Old Code) is to be exercised only in exceptional cases when there is a glaring defect in the proceeding or there is manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. There is no dispute about the said principle of law with regard to the scope of the revisional power of this Court. Similarly, there cannot be any dispute about the ratio laid down in Gadadhar Saharia v. Ambika Kumar, AIR 1953 Assam 34 : (1953 Cri LJ 387), that every technical error of law does not make interference in revision obligatory and normally the high Court interferes to prevent injustice which would be otherwise irreparable. In this judgment, it was also laid down that where the petitioner has another remedy available to him the High Court should not interfere. On the latter aspect of the principle of law, I have my own hesitation in endorsing the said view. As discussed above, it will depend on the facts of each case in order to determine whether the court should exercise its revisional power or not without first putting the petitioner to any other remedy available to him under the Code.

22. Counsel for the petitioner has argued that the newspaper selected by the learned Magistrate for publication of notice had no circulation in Ludhiana where the petitioner is admittedly residing and thus, publication of notice in such an obscure newspaper was not justified and he has cited S. Sampuran Singh v. Chief Settlement Commissioner , in this connection. The newspaper in which the notice had been published is on the approved list of the High Court for the persons residing in Punjab. There is nothing on the record to endorse the averment of the petitioner that such a newspaper is not having any circulation in Ludhiana. So in absence of any such material this court can not come to the conclusion that the said newspaper had no circulation in Ludhiana. The learned counsel for the petitioner thereafter contended that the rules required that a copy of the newspaper ought to have been sent to the petitioner ought to have been sent to the petitioner by post under Postal certificate, and he has cited Lalchhaman Dass v. M/s. Veer Finance Co. (1969) 5 Delhi LT 306, a judgment of single Bench of this Court on this aspect. Again, this was a question of fact which could be determined only if some evidence was to be led. The court of revision is only to examine the material already available on the record to decide whether the ex parte order made against the petitioner was in accordance with law or not. In case the petitioner had filed an application before the learned Magistrate for setting aside of the ex parte order, this question of fact should have been agitated and decided by leading evidence by both the parties. So, this particular contention is not available to be urged in this revision petition in absence of any evidence appearing on the record in this connection. Reference was also made to Parambut Thayunni Balkrishna Menon v. Govind Krishanan, , wherein there had been no service of summons in accordance with the provisions of the Code and it was held that the court was not justified in proceeding ex parte. There is no dispute about this principle of law.

23. In the present case, the Magistrate had issued summons not only in accordance with the provisions of the Code but had, in addition, sent registered notices. There were reports of refusal to accept the summons and thereafter the Magistrate directed for service of notice by publication in the newspaper. The reports appearing on the summons and the registered covers have to be accepted as correct by this court while exercising the revisional powers. In case the petitioner disputed the said reports, the petitioner would have been well advised to have moved the learned Magistrate for setting aside of the ex parte order and then the question could have been decided by taking evidence in the matter. But unfortunately the petitioner has chosen to come to this court directly. Hence, the revision petition has to be decided on the basis of the material appearing on the record.

24. In view of the above discussion, I hold that it cannot be held that the order of Magistrate proceeding ex parte against the petitioner was not in accordance with law. I find no scope for interfering with the said order while exercising the power of revision. I dismiss the petition.

25. Petition dismissed.