JUDGMENT
Mahendra Bhushan Sharma, J.
1. In this miscellaneous petition under Section 482 Cr.PC the order passed by the learned Additional Sessions Judge No. 3, Jaipur City, Jaipur dated 6th November, 1984, has been challenged mainly on the ground that the learned Additional Sessions Judge, did not take into consideration the provisions of Section 68 of Cr.PC in holding that the services of the summons of the case, under Section 125 Cr.PC was proper. It is also urged that if the service of the summons under Section 125 Cr.PC is not in accordance with the law, then an application to set aside the ex parte order, if any made under the proviso to Sub-section (2) of Section 126 Cr.PC cannot be dismissed on the ground that the same came to be made after 3 months from the date of the ex parte order.
2. The parties are not in dispute that the summons which were issued on the petitioner of the application under Section 125 Cr.PC which was moved by Smt. Tej Kanwar, in the court of the learned Magistrate, were not served on the petitioner in accordance with Section 68 of the Cr. PC. No doubt, there was dispute between the parties on the fact of actual service.
3. Smt. Tej Kanwar, filed an application under Section 125, Cr.PC in the Court of learned judicial Magistrate, No. 11, Jaipur City, Jaipur for an order of Award of maintenance to her under Section 125 Cr. PC. The petitioner, her husband is a resident of Bundi and is a Patwari, posted in the district. Thus, he was residing outside the local jurisdiction of the learned Judicial Magistrate, Court. No. 11, Jaipur City, Jaipur, therefore the summons were sent through the Judicial Magistrate, Bundi for service on the petitioner. The process server made a report that the petitioner refused to take the summons on being tendered and the witnesses, who were present there in the tehsil refused to sign the endorsement. The summons were sent back to the Court of Judicial Magistrate, No. 11, Jaipur City, Jaipur but without an affidavit of the process server. The learned Magistrate, taking it to be sufficient service ordered that he will proceed to hear the case ex parte. The ex parte order has been read over by Mr. Chadda, learned Counsel for the respondent to the court and it appears that in that order the learned Magistrate, said that the service is complete as the petitioner refused to take the summons and therefore he shall proceed ex parte, recorded the evidence of the non-petitioner and made an order under Sub-section (1) of Section 125 Cr.PC that the petitioner shall pay a sum of Rs. 350/- per month as maintenance to the non-petitioner, his wife with effect from 22nd September, 1982.
4. An application to set aside the order was made on 10th August, 1983, after the period of 90 days prescribed in the proviso to Sub-section (1) of Section 125 Cr.PC which was accompanied by the application under Section 5 of the Limitation Act. The learned Magistrate, dismissed the application. A revision petition was filed by the petitioner which was dismissed.
5. Under the proviso to Sub-section (2) of Section 126 Cr.PC only if the learned Magistrate, is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or willfully neglecting to attend the Court, the learned Magistrate may proceed to hear and determine the case ex parte. In the order made by the learned Magistrate to proceed ex parte no such satisfaction of the learned Magistrate was recorded and only on the ground that that the petitioner had been served and has not appeared it was ordered to proceed ex parte. Generally, in proceedings under Section 125 Cr.PC the evidence has to be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or if personal attendance is dispensed with then in the presence of his pleader in the manner prescribed’for summons cases. Only if the learned Magistrate is satisfied that the person against whom the order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the court an order to pro-eed to hear and determine the case ex-parte may be made and there after the evidence can be recorded even in the absence of the person against whom an order for payment of maintenance is proposed to be made Thus, in the instant case, without recording that the petitioner against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or wilfully neglecting to attend the court, the learned Magistrate lacked inherent jurisdiction to proceed to hear and determine the case ex-parte. In such a case, if an application to set aside the ex-parte order is made, which as already stated earlier was not in accordance with the law, the period prescribed in the proviso to Sub-section (2) of Section 125 Cr.PC for making an application to set aside the ex-parte order will not apply.
6. It has already been stated earlier that the petitioner was posted in Bundi District and was resident of Bundi and he was not residing in the local jurisdiction of learned Magistrate, Jaipur City, Jaipur. In such a case, under Section 67 Cr.PC the learned Judicial Magistrate, No. 11, Jaipur City, Jaipur sent the summons to the learned Magistrate.Bundi for service of the petitioner. Section 68 of the Cr.PC deals with proof of the service of the summons in case the serving officer is not present in the Court. It provides that when a summons issued by a court is served outside its local jurisdiction and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed in the manner provided by Section 62 or Section 64 by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved. There is no dispute that the affidavit of the Asst. Nazir, was not made before the learned Magistrate as required under Section 68(1) Cr.PC. Therefore, the service of the summons was not in accordance with the law and the affidavit about the service could not be admissible in evidence. Thus, there was no service in. accordance with the law.
7. The learned Magistrate, therefore, should have set aside the ex-parte order, he could not have recorded the evidence in the absence of the petitioner, a person against whom an order for payment of maintenance was proposed to be made.
8. Consequently, this Misc. Petition is allowed. The order of the learned Additional Sessions Judge, Jaipur City, Jaipur dated 6-11-1984 as well as the order of the learned Judicial Magistrate, No. 11, Jaipur City, Jaipur dated October, 1983 are set-aside. The order dated 15-3-1983 is also set aside. The learned Magistrate is directed to allow the petitioner to file his reply, record the evidence in the presence of the petitioner and thereafter dispose the case in accordance with the law.
9. In the facts of this case, more so when an interim order for payment of maintenance under Section 125, Cr.PC can be made, I am of the opinion that the petitioner should be ordered to pay interim maintenance to the non-petitioner, his wife, at rate of Rs. 200/- per month from 1st May, 1986. This interim order has been made after taking into consideration some letters of the petitioner said to have been written by the petitioner to the non petitioner which have been read over by the advocate for the non-petitioner from which prima facie I am satisfied that a case of interim maintenance is made out.
10. Any observation made here in is confined for the disposal of this Miscellaneous Petition. The parties are directed to appear in the Family Court, Jaipur City, Jaipur on 7th July, 1986.