High Court of KeralaSingle Judge2013-08-26The Revision Petition is allowed; ex parte orde...

Abdul Salam v. State of Kerala and Beema

Case / Petition Number:Crl.Rev.Pet.No.116 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-08-26
Court Decision / Holding: Revision petition allowed. Impugned ex parte order is set aside; matter remanded to the trial court for fresh consideration. The petitioner is allowed to file a petition along with an affidavit to condone the delay. The learned Magistrate is directed to pass fresh orders on the application and the petition at the earliest, after ensuring appearance by the parties on 1 November 2013.
Final Disposition: The Revision Petition is allowed; ex parte order set aside; remanded to trial court for fresh consideration with permission to condone delay and proceed on merits; appearance directed on a specified date.

Parties to the Case

Appellants / Petitioners

Abdul Salam

Respondents

The State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
Beema, wife of Abdul Salam

Legal Representation & Advocates

Counsels for Petitioners

• S. Shanavas Khan

Counsels for Respondents

• Public Prosecutor Seena Ramakrishnan
• T. Madhu
• B. K. Rajagopal

Case Synopsis & Summary

Abdul Salam, the revision petitioner, challenges an ex parte order in a maintenance case under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the corresponding Rules. The matter arose after Beema, his wife, alleged trespass and attempted rape and later marriage under Muslim rites; following divorce by talak, she sought maintenance for the iddath period and fair provision. The Judicial First Class Magistrate Haripad passed an ex parte order directing payment of maintenance for iddath and a substantial amount as fair provision. Abdul Salam did not appear; he moved to set aside the ex parte order, but the magistrate held the petition to condone delay beyond seven days as barred by Rule 4 proviso. The petitioner argued that Sec.29(2) of the Limitation Act would apply to the special statute, enabling condonation of delay beyond seven days, consistent with the principle that where a special law prescribes a different period, Sections 4-24 of the Limitation Act can apply unless expressly excluded. He relied on Pushpakaran v. Union of India as persuasive authority. The respondents contended that the special statute and rules limit the period, and that the Limitation Act's sections are not automatically applicable. The Kerala High Court accepted that Sec.29(2) applies to the special statute and allowed the petitioner to file an affidavit to condone delay, set aside the ex parte order, and remand to the trial court for fresh consideration with directions to proceed on the merits; the parties were to appear on a specified date.

Provisions of Law Cited

Muslim Women (Protection of Rights on Divorce) Act, 1986Muslim Women (Protection of Rights on Divorce) Rules, 1986Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986Proviso to Rule 4Section 29(2) of the Limitation ActSections 4 to 24 of the Limitation Act

Legal Doctrines & Maxims

Substantial justice must prevail over technical considerations.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contended that though Rule 4 of the Rules prescribes a seven-day period to challenge an ex parte order, Sec.29(2) of the Limitation Act saves the right to condone delay beyond seven days in a special statute. They argued that the Act and Rules are special laws, not expressly excluding Sections 4–24, hence the general limitation provisions can apply to the extent not excluded. The petitioner relied on Pushpakaran v. Union of India as persuasive authority to support applying Sec.29(2) to rescue the delay, allowing an application to condone delay under Section 5 of the Limitation Act once the provisions are invoked. The core objective was to ensure substantial justice over mere technical compliance, and to permit the trial court to rehear the matter on merits after due condonation of delay.

Contentions of Respondents

Respondents contended that the seven-day period under Rule 4 is sacrosanct and that the special statute governs the limitation period. They argued that the Limitation Act's sections 4–24 are not automatically applicable unless expressly excluded, and that Sec.29(2) cannot be invoked to override a fixed period unless the statute clearly contemplates it. They relied on the interpretation that the Act and Rules set a specific timetable, and urged adherence to that timetable to ensure finality and orderly proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pushpakaran v. Union of India	2008(1) KLT 161	Mentioned Only	Cited by counsel to support the applicability of Sec.29(2) to a special statute, but not adopted as binding authority by the court in its final reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935** **Crl.Rev.Pet.No. 116 of 2012 -------------------------------** ## **M.C.No.60/2010 OF JUDICIAL FIRST CLASS MAGISTRATE, HARIPAD.** **REVISION PETITIONER(S)/RESPONDENT:** **-----------------------------------** **ABDUL SALAM AGED 25 YEARS S/O.ABDUL JABBAR, KOCHUPUTHUVAL VEETTIL KIZHAKKEKKARA THEKKUMURI, THRIKKUNNAPUZHA VILLAGE ALAPPUZHA DISTRICT.** **BY ADV. SRI.S.SHANAVAS KHAN** **RESPONDENT(S)/STATE/APPLICANT:** **--------------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. BEEMA, AGED 19 YEARS D/O.RAHIYANATHU, VALAVANKATTIL VEEDU KIZHAKKEKKARA THEKKU MURI, THRIKKUNNAPPUZHA VILALGE ALAPPUZHA DISTRICT- 688001.** **R2 BY ADVS. SRI.T.MADHU SRI.B.K.RAJAGOPAL R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** **“CR”** ## **K.HARILAL, J.** = = = = = = = = = = = ## **Crl.R.P.No.116 of 2012** = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2013 ## **O R D E R** The Revision petitioner is the respondent in M.C.No.60 of 2010 on the files of the Judicial First Class Magistrate's Court, Haripad. The above case was filed by the 2[nd] respondent herein who claims to be the wife of the revision petitioner coming under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act'). 2. It is the case of the complainant that on 01/08/2008 at about 12 a.m, the revision petitioner committed trespass into the house of the 2[nd] respondent and attempted to rape her. The Police registered crime No.198/2008. Thereafter, the revision petitioner and his relatives informed the 2[nd] respondent's mother and uncle that he is willing to marry her. On 03/08/2008, the marriage was solemnized as per Crl.R.P.No.116 of 2012 2 muslim customery rites. But, subsequently, on 22/08/2008, the marriage was dissolved by the pronouncement of 'talak' by the revision petitioner. The 2[nd] respondent observed iddath for three months. She prayed for 6 lakhs as₹ reasonable and fair provision and 15,000/- as maintenance₹ for iddath period. 3. The revision petitioner herein could not enter appearance in the M.C and he was set ex parte. On the side of 2[nd] respondent, PWs.1 and 2 were examined and Exts.P1 to P4 were marked. After appreciating the evidence, the revision petitioner was directed to pay an amount of ₹ 9,000/- towards maintenance for iddath period and ₹ 3,60,000/- towards reasonable and fair provision. 4. When the revision petitioner came to know the ex parte order, he filed a petition to set aside the ex parte order passed against him. The petition to set aside the exparte order was filed with a delay of 58 days. But, no separate petition had been filed to condone the delay. But, the learned Judicial First Class Magistrate, Haripad, Crl.R.P.No.116 of 2012 3 dismissed the petition on the ground that the petition was barred by limitation and it was filed beyond a period of seven days as mandated by the Proviso to Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986 (for short 'the Rules'). This order is under challenge in this revision petition. 5. Shri.S.Shanavas Khan, the learned counsel for the revision petitioner submits that though the proviso to Rule 4 of the Rules mandates that the petition to set aside the ex parte order shall be filed within seven days from the date of order, the petition to condone delay of more than seven days can be entertained after seven days in view of the application of Sec.29(2) of the Limitation Act. The point canvassed by the learned counsel for the revision petitioner is that unless the operation of Sections 4 to 24 of the Limitation Act is excluded by specific provision in the special statute, automatically, the application of those Sections of the Limitation Act will come into play by virtue of Sec.29(2) of the Limitation Act. In support of the above Crl.R.P.No.116 of 2012 4 argument, the learned counsel placed reliance on the decision reported in **Pushpakaran v. Union of India** [2008(1) KLT 161]. In this decision, the Division Bench of this Court had confronted with a similar situation. But, the only difference is that the statute under consideration in that decision was Railway Claims Tribunal Act. 6. Shri.T.Madhu, the learned counsel for the 2[nd] respondent also fairly admits that unless the operation of Sections 4 to 24 of the Limitation Act is specifically excluded in the special statute, by virtue of the operation of Sec.29 of the Limitation Act, a petition to condone the delay can be accepted after a specific period provided under the special statute. 7. In view of the arguments advanced at the Bar, the question to be considered is whether an application to set aside an ex parte order passed under Rule 4 of the Rules can be entertained after the prescribed period of 'seven days' from the date of ex parte order, with a petition to condone the delay of more than seven days. Put it Crl.R.P.No.116 of 2012 5 differently, whether the provisions under Sections 4 to 24 of the Limitation Act can be applied to the proceeding under the Act and Rules made thereunder. 8. According to Rule 4 of the Rules if the Magistrate is satisfied that the respondent is willfully avoiding the service or neglecting to attend the Court, the Magistrate may proceed to hear and pass an order ex parte and any order so made ex parte may be set aside for good cause shown on the application made within seven days from the date of order. The Rule does not say anything as regards to a petition if so filed, after seven days. As rightly pointed out by the learned counsel for the revision petitioner, there comes the application of Section 29 (2) of the Limitation Act to rescue the petitioner. According to Section 29(2) of the Limitation Act, where any special law or local law prescribes for any suit, appeal or application a period of limitation different from period prescribed by the schedule, the provisions of Section 3 shall apply and the provisions contained in Sections 4 to 24 will come into operation, in so Crl.R.P.No.116 of 2012 6 far as, to the extent to which, they are not expressly excluded by such special law or local law. Indisputably, the Act and Rules made there under are special laws, which would come under Section 29 (2) of the Limitation Act. Obviously, Rule 4 of the Rules prescribes a period of 7 days for filing an application to set aside the ex parte order, which is different from the schedule, which prescribes thirty days and the application of the provisions contained in Sections 4 to 24 of the Limitation Act are not expressly excluded either in the Act or Rules made thereunder. Therefore I find that a petition to condone the delay of more than 7 days can be entertained after a period of 7 days from the date of ex parte order, under Section 5 of the Limitation Act and such delay can be condoned on good cause shown on the application. 9. But, in the instant case, no such petition was filed along with the application to set aside the ex parte order. I find that the said defect is a curable defect only. When the substantial justice and technical consideration are pitted Crl.R.P.No.116 of 2012 7 against each other, preference must be given to the substantial justice. Therefore, the revision petitioner is allowed to file an affidavit accompanying a petition to condone the delay. 10. Consequently, the impugned order under challenge is set aside and the matter is remitted back to the trial court. The learned Magistrate is directed to restore the application to set aside the order passed ex parte on the files. The Revision Petitioner is allowed to file a petition along with an affidavit to condone the delay. The learned Magistrate will pass orders afresh on the application and the petition at the earliest. The parties shall appear before the trial court on 1[st] November, 2013. This revision petition is allowed accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.