Smt. Raj Kumari v. Dev Raj

#### é # i 997 RA] KUMARI VIJH V. DEV RAJ VIJ H February 15, 1977 [P. [N.] BHAGWATI, A. C. GUPTA AND P. N. SHINGHAL, JJ.] Code of Criminal Procedure. 1898—-—Ss. 488 and 531—Scope of. thatsentence theSection enquiry, or 531 order of trial of the any or Criminal other criminal proceeding Procedure Court shall in Code, the be set course1898 aside provides of merely which that on it was the no finding, arrived ground at or passed, took place in a wrong sessions division, district, snb-division or 0(éth’ertlocal1115 we. area, [unless] it appears that such error has in fact occasioned a failure appellantIn her filed claima for petition maintenance under s. from 488 Cr.P.C. the respondent, in the Court who was of a her Magistrate. husband, The the thatrespondent the parties took did objection not reside to the within Court’s its jurisdiction jurisdiction. to tryThe the Magistrate case on the passed groundan oforder. eVidence [that][ the] on [ dec1sion] the whole [ on][ the] case.questionThe respondent of jurisdiction did mustnot challenge await the that recording order. Ultimately [the][ Magistrate][ held][ that][ he][ had] the jurisdiction to entertain the application and decided it on the merits. The Sessions Judge referred the respondent’s [revision] application [to][ the] High Court. The High Court he’fd that by taking recourse to s. 531, proceedings could not be entertained in a Court which had no jurisdiction—anew so when an objection had been taken against its maintainability—and that s. 531-could cure the infirmity only if the case had been fought on merits. Allowing [the] appeal, HELD: [The] High [Court‘][ erred][ in] taking the View that s. 531 would not be applicable [to][ this] case merely because the objection as to the jurisdiction was raised by the respondent right at the first instance. [1003 F] l. (a) Territorial jurisdiction is provided as a matter of convenience for the Court, the accused and the witnesses. Under s. 488(8) a proceeding may be taken against any person in any district where he resides or is or where he last resided with his wife. [1001 F—G] (b) Where a Magistrate has the power to try a particular application under s. 488, and the controversy relates solely to his territorial jurisdiction, there ordershould, made ordinarily, by him. be [1001no reason H] why 5. 531 should not be applicable' to the (c) [The][ true] meaning of s. 531 is that while it will not uphold an order topassed confer [in] jurisdictionproceedings on wilfiilly himself taken when in he knowsa wrong that place, he hasor enable no sucha jurisdiction, Magistrate there is no reason why a Magistrate, who is otherwise duly empowered to make an order under s. 488(1), cannot proceed with an application under that sub— section for the purpose of deciding whether he has the territorial jurisdiction to entertainapplicablethat he thehasto the applicationa territorialcase where and jurisdiction. there to decide is a controversy theSection application531as cannottoon the the be district merits said if whereto he be finds theinproceeding [should][ be] held, [the] parties lead [ eVidence] in support of their respective contentions about the correct place of the proceeding, and the~ Magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities. There is no reason why, in'such a case, s. 531 should not be applicable merely because the Magistrate, [while] considering the evidence relating to jurisdiction, unWittingly 998 . SUPREME COURT REPORTS [1977] [2][ 5.0K—] rnakes [a] reference [to][ s.][ 531][ in] passing [and][ not] for the purpose of assuming juris— diction [under][ it.] If the Magistrate, in this case, had thought of assuming juris— diction [under][ s.] 531,_he [would][ not][ have] proceeded to record the evidence of the parties, [on][ the] question [of][ the][ territorial] jurisdiction, or referred to it at length 111 his order and arrived at the decision that he had the jurisdiction. [1002 D-G] Purushottamdas Da/miu v. The State of West Bengal [1962] 2 S.C.R. 101 followed. Rad/tarani v. Ra/lim Sarah/r. A.I.R. 1946 Calcutta 459. Saktlnz‘ala v. Thim— malyya [1966] 2 M.L.J. 326. Slate V. Tamra Naika A.I.R. 1959 Mysore 193. Sultan Clland V. Yogindra Natl: Baz. A.I.R. 1944, Peshawar 25 and Satwam Sing/1 [v.][ sz‘.] Jarwanr Kaur, [1956] A.L.J. 134, held inapplicable. In the instant case, the Magistrate was one of the Magistrates mentioned in s. 488(1). He had specifically rejected the respondent’s application for confining the evidence to the question of jurisdiction or to try that as a preliminary issue. It cannot therefore be said that he had given himself jurisdiction by recourse to s. 531. The Magistrate had set out the point that arose for consideration, discussed the entire evidence and taken into consideration the conduct of the respondent—4111 [of] which led to the conclusion that he had the jurisdiction to trv the application. There is therefore no reason why 3. 531 should not be held to be applicable to this case. [1005F-H] (d) The High Court erred in holding that s. 531 would not be applicable because the respondent had reserved a right to file a written reply on merits after the question of jurisdiction had been decided. The Magistrate had specifically overruled the respondent’s objection, and directed the’ parties to adduce evidence. and deferred the decision on the question of jurisdiction until after the evidence had been recorded. The respondent did not file his reply on the merits. , [lOOSG—H] (e) The High Court erred in holding that there was failure of justice because the respondent never led evidence. The Magistrate called upon the parties to lead evidence. While the appellant obeyed the order, the respondent persisted in thinking that the Magistrate had no jurisdiction, refused to examine his wit— nesses on merits, and chose to confine his evidence' to the question of jurisdiction. [1004F-Hl CIVIL APPELLATE JURISDICTION : Criminal Appeal No. 447 of 1.974. . . (Appeal by Special [Leave][ from][ the] Judgment [and][ Order][ dated] the 14th March 1974 of the Delhi High Court in Criminal Revision Petition No. 61 of 1974. Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant. V. C. Mahajan and S. L. Anéja, for respondent. “ The Judgment of the Court was delivered by SHINGHAL, [«Jr—This] appeal by special [leave][ is] directed against the judgment [of][ the][ Delhi] High [Court][ dated][ March][ 14.] 1974, [allow-] ing [the][ revision] application [of] respondent [Dev] Raj Viih and dis— missing [the] appellant’s application [dated][ March] 18, 1969, [under][ sec-] tion 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code. . [Appellant] Raj [Kumari] Vijh was married to respondent Dev Raj Vrjh [in] Delhi, [in][ June][ 1950.] It is the admitted case of the parties that they were living separately from 1953. The appellant filed her an. .. »—- **.**,. **_** ### “W [“mfiwu-m.] t “w gsmr. [RAJ] KUMARI [v.][ DEV] RAJ (Siting/ml, J.) 999 first application [for] maintenance under section 488 of the Code, in 1955, but [it] was dismissed. The respondent filed an application for divorce, [or] judicial separation, in 1956 in Aligarh (Uttar Pradesh). It was ultimately dismissed} on appeal on March 29, 1968. In the meantime the appellant filed a suit against the respondent for recovery of her “st-ridhen” in Delhi in 1956. It was decreed on appeal by the Delhi, High Court in_1967, for Rs. 6,458 /'—. The appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a deserted wife. Nothing came out of it and she filed the present ,.application_under section 48-8 of the Code in the Court of the Delhi Magistrate [on][ March] 18, 1969. It was stated in the application that histhe legally appellant wedded had lived wife, withand thethereafter respondentat in Village Delhi andLampur, Aligarh [P.][ S.] as Narela, Delhi, towards the endof December 1968, because the res— pondent [visited] her there for a settlement and for non—execution of the decree which she had obtained for Rs. 6,458 /— on account of her at“stridhan”. Lamlpur asIt husbandwas stated and in wife the and application there was that cohabitation. the parties livedThe appellant prayed for an order allowing her Rs. 450/— per month for ormaintenance refused to as maintain the respondent her. had sufficient means but had neglected The respondent filed a reply on April 29, 1969 in which, according [to][ the] Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur. An objection was however taken that as the earlier application was dismissed on Feb— resruary judicata. 2, 1956, An the objection second was application taken to was the barred jurisdiction on the of principle the Delhi of orCourtthe temporarily reply onthe because ground. in Delhi. it has that beenWe the stated have respondent not by found counsel never it for possible resided the parties to permanently go that through the original record has been destroyed. The Magistrate passed an order thefor production question of of jurisdiction evidence. mayThe be respondent decided before thereupon recording prayed the that evi— denge. That was not agreed to by the magistrate. He made an order on November 19, 1969 that. the question of jurisdiction must await the recording of the evidence on the whole case. The res— pondent [did] not challenge that order or apply for permission to file anan identification additional reply. paradeOn for the the other purpose hand, of he showing asked for that the some holding of the of theirappellant’s evidence, witnesses although did it not appears even know that him.the respondentBoth the did parties not like led to avail of the opportunity which was given to him to lead evidence on the merits. He did not even apply for permission to file any adonditional her' application reply when for theMagistrate maintenance recorded as a whole. tthe appellant’s evidence Ultimately [the] Magistrate made his final order on May 21, 1973. He took the View that there was no specific denial of the appellant’s inallegation village Lampur, [that][ the] inparties Delhi, last towards resided the together, end ofas December husband and in 1968. wife, 1000 SUPREME COURT REPORTS [1977] [2][ s.C.R.] He took notice of the fact that the plea of bar against the maintain— ability [of][ the][ second] application [because][ of][ the][ dismissal][ of][ the][ first] application, was not pressed by the respondent and after referring to the entire evidence in details, he reached the conclusion [that][ he] had the jurisdiction to entertain the application, and granted [main—] tenance allowance at the rate of Rs. 125/- per menth, with effect [from] March 18, 1969, along with an order regarding the mode of payment of the arrears. The respondent applied for a revision of that order, and the Additional Sessions Judge referred the case to the High [Court] on November 30, 1973, for dismissal, of the application (under [section] 488 of the Code) on the ground that the Delhi Magistrate [had] no jurisdiction to entertain it. As the High Court has allowed the reference, [and][ dismissed][ the][ revision] application [which][ was] filed by the appellant for an increase in the maintenance allowance, the appellant [has][ come] up [to][ this][ Court] by special [leave.] In its impugned judgment dated March 14, 1974, [the] High [Court] has “recorded the finding that the parties [did][ not][ reside] together [at] village Lampur, [and][ for][ that][ reason][ it][ took][ the][ View][ that][ the][ Delhi] Court had no jurisdiction to entertain the appellant’s application under section 488 of the Code. Counsel for the appellant has vehemently urged [that] the finding of the, High [Court][ is] incorrect, [but] as it is a finding of fact, we shall proceed on the assumption [that] it does not call fort interference in this appeal. The question how— ever remains whether section 531 of [the][ Code][ would][ be] applicable to the case? The High Court has held that [the][ section][ would][ not] be applicable, and that is why [it][ has] passed [the] impugned [order][ for] the dismissal of the application of [the] appellant [under][ section][ 488] of the Code. The High Court has taken that [view][ for][ the] following reasons,— (i) The objection as to jurisdiction was raised “right at the first instance by the husband”. (ii) [The] respondent “specifically [reserved][ his] right [ to][ file] a written reply on merits after [the] question [of] jurisdiction was decided”. (iii) As the respondent had [“reserved][ his] right [to][ lead] evi— dence on merits, it is not a case where the husband deliberately gave up [his] right to lead evidence on merits ..... (iv) There was “obvious prejudice and failure of justice” to the respondent as he never led [evidence][ on][ the] merits. (v) [It][ Was] necessary [for][ the] appellant [to] prove [that][ the][ res-] pondent [had][ refused][ and] neglected [ to][ maintain][ her.][ and] that “obviously requires an opportunity to be given to the husband to prove [his] case, [if][ it][ be] one, that he has not refused or refuses or neglected to maintain his wife or what his income and means [is”.] “mm-u. dim 1“ ## I ,_ um ‘ 7 SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, L) 1001 (vi) [“Before] a decision on merits can be given the husband has the undoubted request (sic) to lead evidence on merits”., (vii) [A] proceeding cannot be entertained in a court which has jurisdiction by simply taking recourse to section 531 of the Code, when [an] objection has been taken against its maintainability, for otherwise the provision relating to jurisdiction would become nugatory. Section 5 31 “canmerits.” cure the infirmity after," the case has been fought on We have examined these grounds, but we are constrained to say that they [are] not tenable in the facts and} circumstances of this case. Section 531 of the Code reads an follows,— “531. No finding, sentence or order of any [Criminal] Court shall be set aside merely on the ground that the inquiry, [trial][ or] other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.” The section therefore relates to a defect of jurisdiction. As has beenWest stated Bengal(‘) by those this Court are two in Purushottamdas types’ of jurisdiction Dalmia of a v. criminal The State court, of ofWhiletonamely, try! it makes the particular (1) former the [the] kinds entire jurisdiction goes to of trial the offences, voiid, root with oh the respect and the latter (2) matter to its is the territorial not and power of anya of transgression jurisdiction. perempfOry the court character [and][ is][ curable] under section 531 of the Code. Territorial amindjurisdiction the administrative [is] provided “just pointas ofa View matter with of respect convenience, to the keeping work of in meet particular the charge court, levelled the convenience against him of and the the accused convenience who will of have the wit- to mentofwherebesectionnesses the takem as be who illegitimate 488 to against last have inthe resided fact filing any to child.” provides appear with person of an his application before that inThis wife any therefore proceedings or, the distribt as Court”. under the is where case under ordinarily secti0n may heSub-section the resides 488 be, section the the within or require— (8) mother is, “may the orof limits of the jurisdiction of the magistrate concerned. 'So [where][ a] magistrate has the “power” to try a particular_appli— sectionterntorialcation 531 [under] jurisdiction, of [ section] the Code488,there shouldand should, the not be controversyordinaril applicable, relates tobe theno solely orderreason to whymade his suchby [him.] circumstancesIt has therefore in this case to be for examined which the whether High Court there could were justi—any fiably [refuse][ to] apply the provisions of section 531 (1) [1962] 2 SCR. 101. R “W, 19.02 SUPREME COURT REPORTS , [1977] [2][ S.C.R.] The [first][ reason] why [the] High [Court][ has][ not] given the [benefit][ of] section,53l [to][ the] appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent “right at the first instance.” Counsel for the respondent has strenuously argued that such a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the» impression that section '531 of the Code, would, at any rate, validate his order. That, accOrding [to][ the] counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531. Reliance in this connection has been placed on Radharam' v. Rahim SardarG), Sakuntalat v. Thirumalayya(2), [State][ v.][ T][avam] Naika(3), [Sultan] Chand [ v.] Yogindra Nat/z Baz (4), and Satwant’Singh v. Smt. jaswam Kaur (5). As is apparent, section 531 does not entitle a magistrate, who is not a magistrate of the class referred to in sub—section (1) of section 488, [to] proceed [with] an application for maintenance. In fact even a DistriCt Magistrate, a Sub-Divisional Magistrate or a. Magistrate of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under sub-section (8) of section 488. The true meaning of section 531 is. that while it will not uphold an order passed in proceedings wilfully [taken][ in] a wrong place, or enable a magistrate to confer jurisdiction on himself when. he knows that he has no such jurisdiction, [there][ is] no reason why a magistrate, who is otherwise duly empowered [to][ make][ an] order [under] sub—section (1) of section 488 of the Code, cannon proceed with an application under that subsection .for the purpose of deciding whether he has the territorial jurisdiction [to][ entertain] the application and to decide the application on the merits if he finds that he has the territorial jurisdiction. Section 531 cannot thus be said to be inapplicable to a case Where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support [of][ their] respective contention about the correct place of the proceeding. and the magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities. In other words, there is no reason why. in such a case, section 531 should not be applicable merely because the magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it. If the magistrate. in this case, had thought of assuming jurisdiction under section 531. he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length in his order and arrived at the decision that he had the jurisdiction. We have gone through [the] cases which have been cited by the counsel for the respondent. Radharani and another v. Rahim Saidar (supra) was a case where the magistrate proceeded with the trial (1) A.t.RIT§467:Zicutta 459. (2) (1966) 2 M.L.J. 326. G3) [A.I.R.] 1959 Mysore 193. (4) [A-I-R-] 1944 Peshawar 25. (5) (1956) A.L.J. 134. SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, J.) 1003 in the wrong local [area] with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction. This is however not So in the present case, because the Magistrate recorded the evidence on the question of territorial jurisdiction, and he went to the extent of making [a][ reference][ to][ the][ entire][ evidence][ which][ was] led on the point. Moreover he took note of the fact that the respondent had not, specifically [dened] that he lived at village Lampur with the appellant. This is therefore not a case. where the Magistrate proceeded with the application even though he had the knowledge that it did not fall within his jurisdiction. The same is the position in regard to Sakuntala v. Thirumalayya (supra) and it also cannot avail the respondent. We have gone through State v. Tavara Naika (supra). It was not a case under section 488 of the Code. What has been said there is that the curative provisions of section 531 should not be an excuse for overlooking a material irregularity pertaining to jurisdic— tion when it is brought to the notice of the Court before the cornmencement of the trial. It does not therefore lay down anything different from what has been stated in Rad/761111111. v. Rahim Sardar (supra). It was a case where the accused was committed to a wrong sessions division, and the mistake was corrected because the trial had not commenced. Sultan Chand & another v. Yogindra Nat/z Ba; (supra) was also not a case under section 488 of the Code. It has een held in that case that when the question of jurisdiction has been raised before the trial magistrate, it is his duty to determine the point, otherwise the provisions as regards jurisdiction would never be en~ forced and that section 531 cannot be applied to such a case. As has been stated, the Magistrate in the present case addressed himself to the question of jurisdiction, recorded detailed evidence on it, con— sidered the evidence in his order and reached the conclusion that the application was maintainable in his court. This is therefore a difierent case. Satwant Singh v. Smt; Jaswant Kaur (supra) was a case under section 488 of the Code. It has been held there that where the question of jurisdiction had been raised before the trial magistrate, [it] was his duty to determine the point, and that he can~ not proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction. As has been shown, this was not so in the present case. It would thus appear that the High [Court][ erred][ in] taking the View that section 531 would not be applicable to- this case merely because an objection as to jurisdiction was raised by the respondent “right at the first instance.” The second ground mentioned by the High Court is that section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decided. We find that this is clearly a mis— statement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent reserved any [such] right [to][ file] a written reply on the merits at a later stage, after the question of jurisdiction was decidedagainst him. On the other hand, we find that the Magistrate specifically [overruled] the objection [of][ the] respondent, and [made][ an][ order] directing [the] parties to addutre their evidence on the whole case and specifically rejected 16—206SCI/ [77] 1,004 SUPREME COURT REPORTS [1977] [2][ S.C.R.] the respondent’s application for deciding the question of jurisdiction in the first instance. The Magistrate has clearly stated that an order was made by him for the production of evidence “in the case", and that he decided to defer a decision of the question of jurisdiction until after the evidence had been recorded as a whole. The Magistrate has further stated that the respondent did not file his further or additional reply even then. The High Court therefore undoubtedly erred in thinking that the respondentrspecifically reserved his right to file a written reply on the merits later on. As has been shown, no such reservation was permitted by the magistrate, and counsel for the respondent was not able to show how the respondent could unilaterally [make][ such] a reservation for himself. It may be that, in a given case, it may be advisable for a magistrate to confine the evidence of the parties, in the first instance, to any preliminary objection relating [to] jurisdiction, and to decide the controversy on the merits thereafter, [but][ as] this was not so in the present case, we are unable to find any justification for [the] second ground mentioned by the High [Court.] The third ground of the High Court is also untenable, for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on th meritscounsel and for did the not respondent deliberately was unable give up to showthat howright. it couldHere beagai said. that [the] respondent made any such reservation, or was entitled to it forhadwhen, deciding passedas has thean been order question stated, for of the the jurisdiction production Magistrate as of had a all preliminary rejected the evidence his question application in andthe case. If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that he had reserved the right to lead evidence at a later stage. The High Court has taken the View that this is a case where toasthere he appreciate neverwas obvious led that evidence the prejudice respondenton to the the merits. had respondent to thankBut and the himself High a failure for Court that of justice failed prehisdicament.to try application the questionHe to knew that of that jurisdiction effect. the MagistrateHe in also the knew first had instance passed that the an and Magistrate order had refusing rejected had called upon the parties to lead all their evidence. The appellant obeyed [that] order and examined [her] witnesses. The respondent persisted [in] thinking that, the Magistrate had no jurisdiction, and he cientrefusedto. to confine examine his the evidence witnesses to onthe the question merits of jurisdiction.and thought it suffi~So it" hethereor failure deliberately can be of no justice. refrained justificationAS from it for is, producing him Counsel to raise for his the the evidence question respondenton of the prejudice has merits,not been able to refer to any application of the respondent, whether oral or documentary, expressing a desire to lead his evidence on the merits. The fact of the matter therefore is that the respondent had decided that he would not lead any evidence on the merits, and confined his evidence to the question of jurisdiction. It may be that, as m‘ SMT. RAJ KUMARI v. DEV RAJ (Shinghal, J.) 1005 has been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance. The fifth ground mentioned by the High Court is that before an order could be passed under section 488(1) it was necessary to hisproveand case. that [that] required [ the] But [ husband] the an argument opportunity [ had] isrefused futile to or be because neglected given to the the to respondent maintain husband his didto prove wife, not set up any defence on the merits. On the other hand, the Magistrate wasfound the that lawfully there was wedded no controversy wife of the aboutrespondent the facts [and] thatthat the she appellanthad been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain [her.] In its sixth ground the High Court has stated that before a deciforsion permission could be given to lead on evidence the merits, on the merits. husbandIt would could make be sufficient a request to trate.andsay how [that] anyCounsel such for request the respondent was made butwas was unable refusedto point by theout Magis— when not beLastly, maintained the High by Courta court has taken which the has viewno that jurisdiction a proceeding by simply canbeentaking taken [recourse] againstto section its maintenance, 531 of the for Code otherwise when thean provision objection relat-has beening [to] consideredjurisdiction earlier wotuld and become need not nugatory. be re—examined.This point has already It is thus quite clear that the High Court committed a serious error of law in refusing to invoke section 531 in the facts and cirwhocumstances took the of proceedings, this case. It ison not the appellant’s in controversy application that the under Magistratesub— section (1) of section 488, was one of the magistrates mentioned in that sub—section. The respondent [raised] a controversy as to his local jurisdiction, and the Magistrate ordered the parties to lead all their issue.evidenceevidence.It to is theHe therefore specifically question futile of rejected jurisdiction, to contendthe or that application to the try Magistrate that for as confining a preliminary gave him- the self jurisdiction by recourse to section 531 of the Code. On the other hand in his final order, he set out the points which arose for consideration on the question of jurisdiction, [made] a mention, at length, [of][ the] entire evidence on that question and took into consi~ deration the conduct of the respondent and the case law as well as the respondent’s reply. All that led him to the conclusion that he whyhad jurisdiction [section] 531 to tryshould thenot application. be held toThere be applicable is thereforeto no_ this reasoncase. As has been shown, it is futile for Counsel for the respondent to justice,raisemerits. thebecause questionAs we havethe of respondent prejudice, pointed out, or did tohe saynotdid lend that'so there deliberatelyhis evidencewas a failure onand ofthein in. mm \-| | 1,006 SUPREME COURT REPORTS [1977] [2][ S._C.R.] defiance of the order [of] the Magistrate calling upon him [to][ lead][ his] evidence on the whole [case.] The respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain [his] wife, [and][ -made] an order that he shall make a monthly allowance [of] Rs.‘125/- per mensem for her maintenance. The appeal is allowed and the impugned [order][ of][ the] High [Court] dated March 14, 1974, is set aside, with costs. P.B.Rt \ Appeal [allowed.]