RA] KUMARI VIJH versus DEV RAJ VIJH

RA] KUMARI VIJH

DEV RAJ VIJH

February 15, 1977

[P.[N.]BHAGWATI, A. C. GUPTA AND P. N. SHINGHAL, JJ.]

Code of Criminal Procedure.

1898—-—Ss. 488and 531—Scope of.

Section 531 of the Criminal Procedure Code,

1898 provides that no finding,

thatatsentence or the passed, enquiry, or order took trial of place any or other criminal ina proceeding wrong Court sessions shall in the be division, set course aside of district, merely which snb-division on it was the arrived groundorarea,[unless] itappears that such error has in fact occasioned failure0(éth’ertlocal1115 we.

appellantIn her filed claima for petition maintenance unders. from 488 Cr.P.C. the respondent, in the Court who was of her Magistrate. husband, The thethatrespondent the parties took did objection not reside to the within Court’s its jurisdiction jurisdiction. to tryThe the Magistrate case on the passed groundanoforder. 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 jurisdictionto entertaintheapplication and decided it on the merits.The Sessions Judge referred theres-hadpondent’staking no recourse jurisdiction—anew[revision] to s.application 531, proceedings so when[to][ the] anHigh could objection Court. not had be entertainedThe been High taken Court in against Court he’fd its that which main- byfoughttainability—andon merits. thats. 531-couldcure the infirmity only if thecase had been

Allowing[the]appeal,

HELD:[The]High[Court‘][ erred][ in]taking the View thats. 531 would not beraisedapplicable by the[to][ this] respondentcase merely right because at the first the instance. objection[1003as to F] the jurisdictionwas

l. (a) Territorial jurisdiction is providedasa matter of convenience for theCourt,taken against the accused any person and the in any witnesses. district whereUnder hes. 488(8) resides ora proceeding isor where may he last beresidedwithhiswife.[1001 F—G]s. 488,(b) and Where the controversya Magistrate relates has the solely power to to his tryterritoriala particularjurisdiction, application underthereordershould, made ordinarily, by him. be[1001noreason H] why5.531shouldnot beapplicable'tothe

(c)[The][ true] meaning ofs. 531is that while it will not upholdanordertopassed confer[in] jurisdictionproceedings on wilfiilly himself taken when in he knowsa wrong that place, he hasor enable no sucha jurisdiction, Magistratethere is no reason why Magistrate, who is otherwise duly empowered to makean order unders. 488(1), cannot proceed withan application under that sub—section for the purpose of deciding whether he has the territorial jurisdiction toentertainthat he thehas the application territorial and jurisdiction. to decide theSection application531cannoton the be merits said ifto he be findsin-applicabletoacase where there isa controversyasto the district where theproceedingtive contentions[should] about[ be] theheld, correct[the]parties place lead of[ eVidence] the proceeding,in supportand of the~ their Magistrate respec-finds it necessary (after taking note of the entire evidenceon the controversy)to arrive at decision on the basis of the balance of probabilities.There is noMagistrate,reason why, in'such[while]considering case,s. 531the evidence should not relating be applicableto jurisdiction, merely because unWittingly thernakesdiction[a][under]reference[ it.]If[to] the[ s.][ 531] Magistrate,[ in]passing in this[and][ not] case, for had the thought purpose of of assuming assuming juris— juris—diction[under][ s.]531,_he[would][ not][ have]proceeded to record the evidence of the111parties, his order[on][ the] andquestion arrived at[of][ the] the[ territorial] decision thatjurisdiction, he had the or jurisdiction. referred to it [1002 at length D-G]followed.Purushottamdas Da/miuv.TheState of West Bengal [1962]2 S.C.R.101Rad/taraniv. Ra/limSarah/r.A.I.R.1946 Calcutta 459.Saktlnz‘ala v.Thim—malyya [1966]2 M.L.J.326. SlateV. Tamra Naika A.I.R.1959 Mysore193.Sultan CllandV.Yogindra Natl:Baz. A.I.R.1944,Peshawar25andSatwamSing/1[v.][ sz‘.]Jarwanr Kaur, [1956] A.L.J. 134, held inapplicable.In the instant case, the Magistrate was one of the Magistrates mentionedins. 488(1).He had specifically rejected the respondent’s application for confiningthe evidence to the question of jurisdiction or to try thatasa preliminary issue.It cannot therefore be said that he had given himself jurisdiction by recourse tos.531.The Magistrate hadset out the point that arose for consideration, dis-cussed the entire evidence and taken into consideration the conduct of theres-pondent—4111[of]which led to the conclusion that he had the jurisdiction to trvthe application.Thereisthereforenoreason why3.531should not be heldtobe applicable to thiscase.[1005F-H]

(d)The High Court erredin holding thats.531 wouldnot be applicablebecause the respondent had reserved right to file written reply on merits afterthe question of jurisdiction had been decided.The Magistrate had specificallyoverruled the respondent’s objection, and directed the’ parties to adduce evidence.and deferred the decision on the question of jurisdiction until after the evidencehadbeenrecorded.Therespondentdidnot filehis replyonthemerits.,[lOOSG—H]

(e)The High Court erredin holding that therewas failure of justicebe-cause the respondent never led evidence.The Magistrate called upon the partiesto lead evidence.While the appellant obeyed the order, the respondent persistedin thinking that the Magistrate hadno jurisdiction, refused to examine hiswit—nesseson merits, and choseto confine his evidence' to the question of jurisdic-tion.[1004F-Hl

CIVILAPPELLATEJURISDICTION: Criminal Appeal No.447 of1.974...

(Appeal by Special[Leave][ from][ the]Judgment[and][ Order][ dated]the 14th March 1974 of the Delhi High Court in Criminal RevisionPetition No.61of1974.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 bySHINGHAL,[«Jr—This]appeal by special[leave][ is]directedagainstthe judgment[of][ the][ Delhi]High[Court][ dated][ March][ 14.]1974,[allow-]ing[the][ revision]application[of] respondent[Dev]Raj Viihanddis—missing[the]appellant’s application[dated][ March]18, 1969,[under][ sec-]tion 488 of the Code of CriminalProcedure,1898,hereinafterreferred toas the Code..[Appellant]Raj[Kumari]Vijhwas married to respondent Dev RajthatVrjh they[in]Delhi, were living[in][ June] separately[ 1950.] fromIt is the 1953. admittedThe case appellant of the filed parties her

first application[for] maintenance under section 488of the Code, in1955, but[it]was dismissed.The respondent filed an application fordivorce,It was ultimately[or]judicial dismissed} separation, on in appeal1956 inon March Aligarh 29, (Uttar1968. Pradesh).In thenoticedesertedDelhi,ofmeantime her High to “st-ridhen” wife. the the Court respondent appellantNothing in in_1967, Delhi filed oncame in June for 1956. suit Rs.out 24, against of 6,458 1968,It it was and the /'—. claiming decreed respondentsheThe filed appellant on maintenance appeal the for recovery gave bypresent as the aa,.application_under section 48-8 of the Code in the Court of the DelhihisMagistratethe legally appellant wedded[on] had[ March] lived wife,18, with 1969.and thethereafter respondentIt was statedat in Village in Delhi the application andLampur, Aligarh that[P.][ S.]asNarela, Delhi, towards the endof December 1968,becausetheres—pondent[visited]her there fora settlement and for non—execution ofthe decree which she had obtained for Rs. 6,458 /— on account of herat“stridhan”. LamlpurasIt husbandwasstated and in wife the and application therewas that cohabitation. the parties livedTheappellant prayed foran order allowing her Rs. 450/— per month formaintenance as the respondent had sufficient means but hador refused to maintain her. neglected

The respondent filed reply on April 29, 1969 in which, accord-ing[to][ the]Magistrate, therewasno specific denial of the avermentthathowever the parties taken that last residedas the earlier together application at Lampur. was dismissedAn objectionon Feb— wasororiginalforCourttheresruary temporarily production reply judicata. 2, onthe record 1956, because An ground. in has of the objection Delhi. it evidence. been second has that been destroyed.We was the application stated haveThe respondent taken not by toThe was found counsel the Magistrate never barred jurisdiction it for possible resided on the passed the parties to of permanently principle go the an that through order Delhi the oforderawaitdenge.the question theonThat November recording ofwas jurisdictionnot 19, of agreed the1969 may evidence that. to be by respondent decided the theon question the magistrate. before whole thereupon of recording jurisdictioncase.He prayed madeThe the must that evi—res—anananpondent identification additional[did] reply.not parade challengeOn for the that the other order purpose hand,or of apply he showing asked for for permission that the some holding to of file the ofonditionaltoontheirappellant’s avail her' the evidence, merits. application reply of witnesses the when although opportunityHe for did theMagistrate did maintenance not it not appears which even even apply was know recorded that as given fora whole. him.the permission tthe to respondent him appellant’sBoth to to the lead did file parties evidence evidence not any like ad- led

He tookUltimately the View[the] thatMagistrate there was made no his specific final order denial on of May the appellant’s 21, 1973.inallegation village Lampur,[that][ the] inparties Delhi, last towards resided the together, end ofas December husband and in 1968. wife,

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,wasnot pressed by the respondent and after referringto 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 ofRs. 125/- per menth, with effect[from]March 18, 1969, along with an order regarding the mode of paymentof the arrears.The respondent applied for 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]nojurisdictionto entertain it.As the High Court hasallowedthereference,[and][ dismissed][ the][ revision]application[which][ was]filedbythe appellant foranincrease in themaintenanceallowance,theappellant[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 hadno jurisdictionto entertain theappellant’sapplicationunder section 488 of the Code.Counsel for the appellant hasve-hemently urged[that]the finding of the, High[Court][ is]incorrect,[but]as it isa finding of fact,we shall proceed on the assumption[that]it does not call fort interferencein this appeal.The question how—ever remains whether section 531 of[the][ Code][ would][ be]applicableto 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] followingreasons,—

(i)The objectionas to jurisdiction was raised “right at thefirst instance by the husband”.(ii)[The]respondent “specifically[reserved][ his]right[ to][ file]awritten reply on merits after[the] question[of] jurisdictionwas decided”.

(iii) Asthe respondent had[“reserved][ his]right[to][ lead]evi—denceon merits, it is notacase where thehusbanddeliberately gaveup[his]righttoleadevidenceonmerits .....

(iv)Therewas “obvious prejudice and failure of justice”tothe 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 requiresan opportunity to be giventothe husband to prove[his]case,[if][ it][ be]one, that he hasnot refused or refusesor neglected to maintain his wifeor what his income and means[is”.]

7SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, L)

(vi)[“Before]a decision on meritscan be given the husbandhas the undoubted request(sic)toleadevidenceonmerits”.,(vii)[A]proceeding cannot be entertained in court which hasjurisdiction by simplytakingrecourse tosection531toofits jurisdiction the maintainability,Code, when would for[an] otherwisebecomeobjection hasnugatory.the been provision takenSection relating against5 31R“canmerits.” cure the infirmity after," the case has been fought on

We have examined these grounds, but we are constrained to say thatthey[are]not tenable in the facts and} circumstances of this case.

Section 531 of the Code reads an follows,—Court“531. shall No be finding, set asidesentence merelyoron order the ground ofany that[Criminal] the in-quiry,[trial][ or]other proceeding in thecourse of which itwas arrived at or passed, took place ina wrong sessionsdivision,it appears district, that such sub-division error has inor fact other occasioned localarea,a failureunlessof justice.”

beenTheWest section stated Bengal(‘) by therefore those this Court arerelates two in Purushottamdas types’ toa of defect jurisdiction of Dalmiajurisdiction. of v. criminal The StateAs court, has ofWhiletonamely, try! the particular (1) former[the] kinds jurisdiction goes to of the offences, root with oh respect and the (2) matter to its the territorial and power of jurisdiction. the courtof it makes the entire trial voiid, the latter is not of anya transgressioncharacter[and][ is][ curable]under section 531 of the Code. perempfOryTerritorialamindjurisdiction particular the administrative court,[is]provided the convenience “just pointas ofa View matter of the with of accused respect convenience, who to the will keeping work have of to inmeet the charge levelled against him and the convenience of the wit-limitsmentofwherebesectionnesses the takem as of be who illegitimate 488 to the against last have in jurisdictionthe resided fact filing any to child.” provides appear with person of of an his the application before that inThis wife magistrate any therefore proceedings or, the distribt as Court”. under the concerned. is where case under ordinarily secti0n may heSub-section the resides 488 be, section the the within or require— (8) mother is, “may the oroffiablysuchbysectionterntorialcation'So[him.] circumstances[refuse] 531[where][under] jurisdiction, ofIt[ to][ section][ a] has themagistrateapply therefore Code in the this488,there should provisions case has toand should, be the for the not examined “power” which be controversy ofordinaril applicable section the to whether High try 531-, relates tobe Court the there particular_appli—no solely order couldreason were to justi— whymade hisany(1) [1962] 2 SCR.101.The[first][ reason]why[the]High[Court][ has][ not] given the[benefit][ of]section,53l[to][ the]appellant is thatan objection as to the jurisdictionof the Delhi Courtwas raised by the respondent “right at the firstinstance.”Counsel for the respondent has strenuously argued thatsucha benefit will not be available inacase where the magistrateknew that he hadno jurisdiction,and persisted in proceeding withthe trial underthe» impression that section '531 of the Code, would,at any rate, validate hisorder.That,accOrding[to][ the]counsel,amountedtoan order by the magistrate giving the jurisdictiontohimself by virtue of section 531.Reliance in this connectionhasbeen placed on Radharam' v. Rahim SardarG), Sakuntalat v. Thiruma-layya(2),[State][ v.][ T][avam]Naika(3),[Sultan]Chand[ v.]YogindraNat/zBaz (4), and Satwant’Singh v. Smt. jaswam Kaur (5).As is apparent, section 531 does not entitle magistrate, who isnot magistrate of the class referred to in sub—section (1) of section488,[to]proceed[with]an application for maintenance.In factevena DistriCt Magistrate,aSub-Divisional Magistrateora. Magistrateof the first class will not be entitled to proceed with such an appli-cation if he knows that the proceedings do not fall within his juris-diction under sub-section (8)of section 488.The true meaning ofsection 531is. that while it will not uphold an order passed in pro-ceedings wilfully[taken][ in]a wrong place,or enablea magistratetoconfer jurisdictionon himself when. he knows that he hasno suchjurisdiction,[there][ is]noreason whya magistrate, who is otherwiseduly empowered[to][ make][ an]order[under]sub—section (1) of section488 of the Code, cannon proceed with an application under that sub-section .for the purpose of deciding whetherhehas the territorialjurisdiction[to][ entertain]the application and to decide the applicationonthemerits ifhe findsthathehas the territorial jurisdiction.Section 531cannot thus be said to be inapplicable toacase Wherethereisa controversy as to the district where the proceeding shouldbe held, the parties leadevidence insupport[of][ their]respectivecontentionaboutthecorrectplaceoftheproceeding.and the magistrate finds it necessary (after taking note of the entireevidence on the controversy)to arrive at decision on the basis ofthe balance of probabilities.In other words, there is no reasonwhy.in sucha case, section 531should not be applicable merely becausethe magistrate,while consideringtheevidence relatingto jurisdic-tion, unwittingly makesa reference to section 531 in passing and notfor the purpose of assuming jurisdiction under it.If the magistrate.in this case, had thought of assuming jurisdiction under section 531.inonhe his would the order question not and have of arrived the proceeded territorial at the to decision jurisdiction, record that the or he evidence referred had the of to jurisdiction. the it at parties, length

counselWe have for thegone respondent. through[the]Radharanicases which and another have been v. Rahim cited by Saidar the(supra)wasacase where the magistrate proceeded with the trial(1) A.t.RIT§467:Zicutta459.(2) (1966)2 M.L.J.326.G3)[A.I.R.]1959 Mysore193.(4)[A-I-R-]1944 Peshawar25.(5) (1956) A.L.J.134.

in the wrong local[area] with his eyes open to the fact that he had noterritorial jurisdiction,andthe Calcutta High Court hadtoobservethat the section does not confer any jurisdiction.This is however notSo in the present case, because the Magistrate recorded the evidenceon the question of territorial jurisdiction, and he went to the extent ofmaking[a][ reference][ to][ the][ entire][ evidence][ which][ was] led on the point.Moreover he took note of the fact that the respondent had not, speci-fically[dened]thathe livedat village Lampurwiththe appellant.This is therefore nota case. where the Magistrate proceeded with theapplicationeven thoughhe had the knowledgethat it didnot fallwithin his jurisdiction.Thesameisthe positioninregardtoSakuntala v. Thirumalayya (supra)and it also cannot avail theres-pondent.We have gone throughStatev.Tavara Naika(supra).It was not case under section 488 of the Code.What has been saidthere is that the curative provisions of section 531should not beanexcuse for overlookinga material irregularity pertainingto jurisdic—tion when it is brought to the notice of the Court before thecorn-mencement ofthetrial.Itdoesnottherefore laydown anythingdifferent from what has been stated inRad/761111111.v. RahimSardar(supra).It was case where the accused was committed toa wrongsessions division, and the mistake was corrected because the trial hadnot commenced.SultanChand&anotherv.YogindraNat/zBa;(supra)was also not acase under section 488 of the Code.It haseen held in that case that when the question of jurisdiction has beenraised before the trial magistrate, it is his duty to determine the point,otherwise the provisionsas regards jurisdiction wouldneverbeen~forced and that section 531cannot be applied to suchacase.Ashas been stated, the Magistrate in the presentcase addressed himselfto the question of jurisdiction, recorded detailed evidenceon it,con—sidered the evidence in his order and reached the conclusion that theapplicationwasmaintainableinhiscourt.Thisisthereforeadifierentcase.Satwant Singhv. Smt; Jaswant Kaur (supra)wasacase undersection 488 of the Code.Ithas been held there thatwhere the question of jurisdiction hadbeen raised beforethe trialmagistrate,[it]was his duty to determine the point, and that hecan~not proceed with the trial ina wrong local area with his eyes opento the fact that he has no territorial jurisdiction.As has been shown,this was notso in the presentcase.It would thus appear that theHigh[Court][ erred][ in] taking the View that section 531 would not beapplicableto- thiscase merelybecause an objectionasto jurisdic-tionwas raised by the respondent “right at the first instance.”The second ground mentioned by the High Court is that section531 would not be applicable because the respondent had specificallyreservedof jurisdiction his right had to been file decided. written replyWe find on that merits this after is clearly the question amis—statement of the facts, for counsel for the respondentwas not ableto refer to anything on the record to show that the respondent reservedany[such]right[to][ file]a written reply on the meritsata later stage,after the question of jurisdictionwas decidedagainst him.On theother hand,we find that the Magistratespecifically[overruled]theobjection[of][ the]respondent, and[made][ an][ order] directing[the]partiesto addutre their evidence on the wholecase and specifically rejected16—206SCI/[77]

wasinthe the respondent’s made first by instance. him application for theThe Magistrate production for deciding has of evidence the clearly question stated “in the of that jurisdiction case", an order andtrateuntilthat he has after decided further the evidence to stated defer that had the beendecision respondent recorded of the didas question nota whole. file of his jurisdictionThe further Magis- ornotheadditionaltoerred file such respondent ina reservation thinking written reply was replyeven that not was then. on the able permitted the respondentrspecifically toThe merits show High by later the how Court magistrate, theon. respondentthereforeAs reserved has and been undoubtedly counsel couldhis shown, right uni- forlaterally[make][ such]a reservation for himself.It may be that,inagiven case, it may be advisable fora magistrate to confinetheevi-dence of the parties, in the first instance, to any preliminary objectionrelating[to]jurisdiction, and to decide the controversyon themeritsthereafter,[but][ as]this was not so in the present case,weare unableto find anyjustification for[the]second ground mentioned bytheHigh[Court.]The third ground of the High Court is also untenable, for it hasrefusedthat the to respondent apply section had 531 reserved on the his ground right ofto prejudice lead evidence for the reasononthmeritscounsel 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 entitledto itforhadwhen, deciding passedas has thean been order question stated, for of the the jurisdiction production Magistrate as of had all preliminary rejected theevidence his question application in andthecase.evidenceIf in therefore spite of the that respondent order of persisted the Magistrate, in refusinghe to alone producewas historeservedblame for the it, right and the to High lead evidence Court erred at in later taking stage. the view that he had

The High Court has taken the View that this isacasewheredicament.totoasthere try he appreciate the neverwas question obviousHe led that knew evidence the of prejudice that jurisdiction respondent theon to the Magistrate the in merits. had respondent the to first had thankBut instance passed and the himself High an and failure order for Court had that of refusing justice failed pre-calledhis application upon the to parties that effect. to leadHeall also their knewevidence. that the MagistrateThe rejected hadobeyed[that]order andexamined[her]witnesses.Theappellantorbeenhethereorcientpersistedrefused documentary, failure deliberately able canto. to confine be of to[in] examine refer no justice.thinking refrained justification expressing his to the evidence any that,AS witnesses from application it the for is,a to Magistrate producing him Counseldesireonthe to the of question raiseto the merits lead for his had respondent, the the evidence his ofno question respondent jurisdiction, jurisdiction.andevidence thoughton whether of therespondent prejudice has it andon merits, suffi~ oralSothenotheit"merits.decided thatThe he fact would of the not matter lead any therefore evidence is that on the the merits, respondent and con- hadfined his evidence to the question of jurisdiction.It may be that,as

has been argued by the Counsel for the appellant, he didso becausehe realised that he had no defence to make on the merits of the claimfor maintenance.

The fifth ground mentioned by the High Court is that beforeanorder could be passed undersection 488(1) itwas necessarytobeenwasfoundsethisproveand up case. the that living that any[that] lawfully required[ the] there defenceBut separately[ husband] the was wedded an argument on no opportunity for the[ had] controversy wife merits. the isrefused of last futile to the many or beOn about because neglected the givenrespondent years the other to the facts the to hand,and respondent maintain[and] that husbandwas thethat the entitled Magistrate she appellant his didto prove wife, nothadtomaintenanceas the respondent had neglected heror had refused tomaintain[her.]In its sixth ground the High Court has stated that beforea deci-sion could be given on the merits, the husband could make afor permission to lead evidence on merits.It would be sufficient request totrate.andsay how[that] anyCounsel such for request the respondent was made butwas was unable refusedto point by theout Magis— when

beennottaking beLastly, taken maintained[recourse] the against Highto section its by Court maintenance,a 531court has taken of which the for the has Code otherwise viewno when that jurisdiction the aan proceeding provision objection by simply relat- can-hasbeening[to] consideredjurisdiction earlier wotuld and become need not nugatory. be re—examined.This point has alreadyerrorIt of is thus law in quite refusing clear to that invoke the High section Court 531 incommitted the facts anda serious cir-thatsectionwhocumstances sub—section. took (1) the of of proceedings, this section case.The respondent 488,It isonwas not theone appellant’s in[raised] of controversy thea controversy magistrates application that the as mentioned to under Magistrate his localsub— inselfissue.evidenceevidence.jurisdiction, jurisdictionIt to is theHe thereforeand specifically question by the recourse Magistrate futile of rejected jurisdiction, to to contend section orderedthe or that application the to531 the parties tryof Magistrate that the for as Code.to lead confining preliminary gaveallOn him- their thetheother hand in his final order, he set out the points which arose forconsideration on the question ofjurisdiction,[made]a mention,atlength,[of][ the]entire evidenceon that question and took into consi~deration the conduct of the respondent and thecase lawas wellasthe respondent’s reply.All that led himto the conclusion thatheraiseAswhyhad jurisdictionhas the[section] been question shown,531 to of tryshould it prejudice, the isnot futile application. be or for held to Counsel saytoThere be that applicable for there is therefore the respondentwastoa no_ this failure reasoncase. oftojustice,merits.becauseAswe havethe respondent pointed out, didhenotdid lend'so deliberatelyhisevidence onandthein

defiance of the order[of]the Magistrate calling upon him[to][ lead][ his]evidence on the whole[case.]The respondent cannot in fact be heardto raise the question of prejudice whenonthe uncontrovertedandwell established facts the Magistrate found that the respondentwasa person who had sufficient means and had neglected to maintain[his]wife,[and][ -made]an order that he shall makea monthly allowance[of]Rs.‘125/- permensem for her maintenance.

The appeal is allowed and the impugned[order][ of][ the] High[Court]dated March 14, 1974, isset aside, with costs.

Appeal[allowed.]