IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.MC.No. 969 of 2009(A) ----------------------------------- AGAINST THE ORDERS IN CMP 3470/08 AND CMP 3467/08 IN MC.16/2008 OF CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... PETITIONER: RESPONDENT IN CMPS & PETITIONER IN MC ------------------------------------------------------------------------------------- M.K.NAZEERA,D/O.ABDUSALAM, RESIDING AT ELAYOOR HOUSE, KEEZHUPARAMBA, MALAPPURAM DISTRICT BY ADV. MR.V.V.SURENDRAN MR.P.M.PADMANABHAN MR.P.A.HARISH RESPONDENTS:PETITIONER IN CMPS & RESPONDENT IN MC AND STATE --------------------------------------------------------------------------------------------------------- 1. ABDUL RAZAK, S/O.GASSALI HAJI, RESIDING AT KUTTIHODIKA HOUSE, CHERMANALLOOR,MUKKOM, KOZHIKODE. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. MR.K.S.MADHUSOODANAN ADV.MR.T.V.JAYAKUMAR NAMBOODIRI ADV.MR.THUSHAR NIRMAL SARATHY ADV.MR.M.M.VINOD KUMAR ADV.MR.K.M.RAMYA R2 BY PUBLIC PROSECUTOR MR.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 969 of 2009-A ================== Dated this the 26th day of May, 2009. O R D E R Petitioner is a divorced wife. 1st respondent is the husband. Petitioner filed M.C.No.16/2008 under Section 3 (1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 1st respondent was set exparte and an order in favour of petitioner was passed on 11-4-2008. After the lapse of 5 months and 5 days, 1st respondent filed C.M.P.Nos.3467/2008 and 3470/2008, one to condone the delay and the other to set aside the exparte order contending that he was in Gulf and he was not served with any notice and he came to know about the proceedings only when his brother informed about the affixture of notice in CMP No.1761/2008 and his absence was not willful and he was unaware of the case. Petition was opposed by Crl.M.C.No.969/2009 -2- petitioner by filing Annexures A4 and A6 objections. Learned Chief Judicial Magistrate under Annexure A7 order condoned the delay on payment of cost of Rs.1,000/- and under Annexure A8 order set aside the exparte order. This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexures A7 and A8 orders contending that petitioner did not appear before the Magistrate and did not file any affidavit and the petitions are filed by the Counsel and his Power of Attorney Holder is not competent to give evidence on behalf of 1st respondent and in the absence of an affidavit by 1st respondent showing good cause, petition should not have been allowed. 2. Learned Counsel appearing for petitioner and learned Counsel appearing for 1st respondent were heard. 3. Arguments of the learned Counsel appearing for petitioner is that though proviso to Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986 enables the respondent, against whom an exparte order is Crl.M.C.No.969/2009 -3- passed, to get the order set aside, he has to show good cause and that too within seven days from the date of the order and when 1st respondent did not appear and even did not file an affidavit, learned Magistrate should not have allowed the application. Learned Counsel also submitted that even if the orders are upheld, 1st respondent can not give evidence through the Power of Attorney and therefore the orders are quashed. 4. Learned Counsel appearing for 1st respondent argued that he was not served with any notice and he was not in India and was unaware of the proceedings and immediately on getting knowledge about the proceedings, 1st respondent instructed the Counsel to file a petition and petition was filed showing good cause and the same was allowed on payment of cost of Rs.1,000/-, which was already received by the Counsel for petitioner, and in such circumstances the petition is only to be dismissed. Crl.M.C.No.969/2009 -4- 5. Proviso to Rule 4 enables the Magistrate on satisfying that the respondent is willfully avoiding service or willfully neglecting to attend the court, to proceed to hear and determine the case exparte. So also respondent against whom an exparte order is passed is entitled to file a petition to set aside the exparte order by approaching the court within seven days from the date of the order and showing good cause shown on application. The rule does not provide that the application is to be filed accompanied by an affidavit of the respondent. The case of 1st respondent is that he was not in India when the exparte order was passed or the application was filed. He had filed petition and produced the Power of Attorney Holder authorising him to represent him. Though the petition to set aside the exparte order as well as application to condone the delay were not filed by 1st respondent personally or by an affidavit of the Power of Attorney Holder, Counsel on behalf of 1st respondent filed the petitions showing good cause. Learned Crl.M.C.No.969/2009 -5- Magistrate was satisfied about the sufficiency of the cause and set aside the exparte order after condoning the delay on payment of cost of Rs.1,000/-, which was already received by Counsel for petitioner. 6. Under such circumstances, I find no reason to interfere with Annexures A7 and A8 orders. As the exparte order stands set aside, Chief Judicial Magistrate is directed to proceed with the trial and dispose the M.C. as expeditiously as possible. M.SASIDHARAN NAMBIAR JUDGE dkr