M. Ramakrishna Vs. M. Satyamma and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - thereafter, the case underwent some adjournments and since petitioner failed to attend the court on 25.8.2000 was set exparte and the learned magistrate, after recording the evidence on behalf of respondents, awarded maintenance of rs. provided that if the magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the magistrate may proceed to hear and determine the case exparte 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. , so that in case of her failure to do so, he could appraise the court about the compromise and take further steps to enforce the alleged compromise. so, if he, without going to the court on the date of hearing, thinks it fit to relax, by merely relying on the promise allegedly made by the 1st respondent, and failed to find out about the fate of the case, after the date of adjournment, he should thank himself, but cannot make his laches or negligence a ground for belated filing of the petition on the ground that he had knowledge of the order in the m. since the petitioner failed to attend the court on the date of hearing of m. for his own reasons, and failed to take steps to find out about the result of the case on 25.8.2000 or within 90 days therefrom, the petition filed by him beyond 90 days of the order in m. is clearly barred by time.orderc.y. somayajulu, j.1. the wife of the petitioner (1st respondent) filed m.c. no. 5 of 2000 seeking maintenance for herself and her minor children (respondents 2 and 3) against the petitioner herein under section 125, cr.p.c. petitioner put in appearance in the said m.c. and filed his counter. thereafter, the case underwent some adjournments and since petitioner failed to attend the court on 25.8.2000 was set exparte and the learned magistrate, after recording the evidence on behalf of respondents, awarded maintenance of rs. 500 per month to the 1st respondent and rs. 300 per month to each of respondents 2 and 3 on 14.9.2000.thereafter, petitioner filed crl. m.p. no. 357 of 2001 to set aside the order in m.c. alleging that there was a compromise between him and the 1st respondent whereat, she, after receiving the amount settled by the mediators, agreed to withdraw the m.c. filed by her and so, he, believing the representation of the 1st respondent that she would withdraw the m.c., did not attend the court on 25.8.2000, but was surprised to receive a notice in crl. m.p. no. 1560 of 2000, dated 2.6.2001 seeking arrears of maintenance filed by the respondents in pursuance of the exparte order of maintenance dated 14.9.2000, and so he went to the court and found out about the respondents obtaining an order of maintenance against him by playing fraud. 2. on behalf of the respondents, 1st respondent filed her counter-affidavit inter alia contending that the petition is barred by time. 3. the learned magistrate, accepting the contention that the petition filed by the petitioner, to set aside the exparte order in m.c., is barred by time, dismissed the petition. questioning the said order of dismissal of his petition, the petitioner filed this petition. 4. the main contention of the learned counsel for the petitioner is that though the petition was filed within 90 days from the date of knowledge of the exparte order, the learned magistrate was in error in dismissing the petition. 5. since the proviso to section 126(2), cr.p.c. reads: provided that if the magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the magistrate may proceed to hear and determine the case exparte 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. it is clear that a petition to set aside an exparte order has to be filed within three months from the date of the order. petitioner, who admittedly was served with summons in m.c. had put in appearance and took adjournments on various counts and even according to him, during the course of inquiry of m.c. a compromise was entered into, whereat 1st respondent promised that she would withdraw the case on 25.8.2000, and did not keep up her promise and played fraud on him. 6. since there were disputes between the petitioner and the 1st respondent, when the first respondent stated to him that she would withdraw the m.c. as per the decision of the mediators, petitioner should have been present in the court on the day of hearing to ensure that 1st respondent would abide by the terms of the compromise, allegedly entered into and file a memo withdrawing the m.c., so that in case of her failure to do so, he could appraise the court about the compromise and take further steps to enforce the alleged compromise. so, if he, without going to the court on the date of hearing, thinks it fit to relax, by merely relying on the promise allegedly made by the 1st respondent, and failed to find out about the fate of the case, after the date of adjournment, he should thank himself, but cannot make his laches or negligence a ground for belated filing of the petition on the ground that he had knowledge of the order in the m.c. only after service of the notice in the petition filed by the respondents to enforce the order of maintenance against him. in this case, the period of limitation of 90 days prescribed by the proviso to section 126(2), cr.p.c. commences from the date of order of m.c. the date of knowledge of order in the m.c., for computing the period of limitation of 90 days, would apply to a case where the notice in m.c. was not served on the respondent in the m.c. since the petitioner failed to attend the court on the date of hearing of m.c. for his own reasons, and failed to take steps to find out about the result of the case on 25.8.2000 or within 90 days therefrom, the petition filed by him beyond 90 days of the order in m.c. is clearly barred by time. 7. therefore, i find no grounds to interfere with the order of the learned magistrate dismissing the petition and, hence, the criminal petition is dismissed at the stage of admission.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. The wife of the petitioner (1st respondent) filed M.C. No. 5 of 2000 seeking maintenance for herself and her minor children (respondents 2 and 3) against the petitioner herein under Section 125, Cr.P.C. Petitioner put in appearance in the said M.C. and filed his counter. Thereafter, the case underwent some adjournments and since petitioner failed to attend the Court on 25.8.2000 was set exparte and the learned Magistrate, after recording the evidence on behalf of respondents, awarded maintenance of Rs. 500 per month to the 1st respondent and Rs. 300 per month to each of respondents 2 and 3 on 14.9.2000.Thereafter, petitioner filed Crl. M.P. No. 357 of 2001 to set aside the order in M.C. alleging that there was a compromise between him and the 1st respondent whereat, she, after receiving the amount settled by the mediators, agreed to withdraw the M.C. filed by her and so, he, believing the representation of the 1st respondent that she would withdraw the M.C., did not attend the Court on 25.8.2000, but was surprised to receive a notice in Crl. M.P. No. 1560 of 2000, dated 2.6.2001 seeking arrears of maintenance filed by the respondents in pursuance of the exparte order of maintenance dated 14.9.2000, and so he went to the Court and found out about the respondents obtaining an order of maintenance against him by playing fraud.

2. On behalf of the respondents, 1st respondent filed her counter-affidavit inter alia contending that the petition is barred by time.

3. The learned Magistrate, accepting the contention that the petition filed by the petitioner, to set aside the exparte order in M.C., is barred by time, dismissed the petition. Questioning the said order of dismissal of his petition, the petitioner filed this petition.

4. The main contention of the learned Counsel for the petitioner is that though the petition was filed within 90 days from the date of knowledge of the exparte order, the learned Magistrate was in error in dismissing the petition.

5. Since the proviso to Section 126(2), Cr.P.C. reads:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case exparte 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.

It is clear that a petition to set aside an exparte order has to be filed within three months from the date of the order. Petitioner, who admittedly was served with summons in M.C. had put in appearance and took adjournments on various counts and even according to him, during the course of inquiry of M.C. a compromise was entered into, whereat 1st respondent promised that she would withdraw the case on 25.8.2000, and did not keep up her promise and played fraud on him.

6. Since there were disputes between the petitioner and the 1st respondent, when the first respondent stated to him that she would withdraw the M.C. as per the decision of the mediators, petitioner should have been present in the Court on the day of hearing to ensure that 1st respondent would abide by the terms of the compromise, allegedly entered into and file a memo withdrawing the M.C., so that in case of her failure to do so, he could appraise the Court about the compromise and take further steps to enforce the alleged compromise. So, if he, without going to the Court on the date of hearing, thinks it fit to relax, by merely relying on the promise allegedly made by the 1st respondent, and failed to find out about the fate of the case, after the date of adjournment, he should thank himself, but cannot make his laches or negligence a ground for belated filing of the petition on the ground that he had knowledge of the order in the M.C. only after service of the notice in the petition filed by the respondents to enforce the order of maintenance against him. In this case, the period of limitation of 90 days prescribed by the proviso to Section 126(2), Cr.P.C. commences from the date of order of M.C. The date of knowledge of order in the M.C., for computing the period of limitation of 90 days, would apply to a case where the notice in M.C. was not served on the respondent in the M.C. Since the petitioner failed to attend the Court on the date of hearing of M.C. for his own reasons, and failed to take steps to find out about the result of the case on 25.8.2000 or within 90 days therefrom, the petition filed by him beyond 90 days of the order in M.C. is clearly barred by time.

7. Therefore, I find no grounds to interfere with the order of the learned Magistrate dismissing the petition and, hence, the Criminal Petition is dismissed at the stage of admission.