JUDGMENT
Sarojnei Saksena, J.
1. Heard.
Petitioners’ learned Counsel submits that petitioner-wife filed a petition under Section 125, Criminal Procedure Code claiming maintenance for herself as well as for her minor son. Husband-respondent was served. He filed the reply and attended the hearing on number of dates but subsequently on one day proxy Counsel appeared for him and on the adjourned date even he did not appear. Respondent thereafter never attended the hearing and ultimately her petition filed under Section 125, Criminal Procedure Code was allowed vide order Annexure P3. Petitioners are granted maintenance @ Rs. 800/- p.m.; Rs. 300/- for the child and Rs. 500/- for the wife.
2. Respondent filed revision against the order, Annexure P3, in the High Court which was withdrawn vide order Annexure P4 on 22.2.1994. According to the learned Counsel, the order Annexure P3 had attained finality but despite this fact, the lower Court while passing the impugned order has set aside the ex-parte order Annexure P3 dated 12.12.1992.
3. Petitioner’s learned Counsel has referred to two judgments Osman Gani v. Takunrannessa Begum, 1970 Cr. LJ 634, and Joginder Singh v. Balkaran Kaur, 1970 PLR 679. He has strongly stressed that under the aforementioned facts provisions of Section 126(2), proviso, Criminal Procedure Code were not invokable, the lower Court has fallen into an error in passing the order under Section 126, Criminal Procedure Code and setting aside the order Annexure P3.
4. Respondent’s learned Counsel submitted that order Annexure P3 was passed ex-parte. Thereafter, respondent submitted an application under Section 126, Criminal Procedure Code. In the meantime, respondent rushed to the High Court and filed revision as well but as there is specific provision in the Criminal Procedure Code to get relief under Section 126, Criminal Procedure Code he withdrew his revision vide order Annexure P4 dated 22.2.1994. Thereafter, as he could prove sufficient cause for his non-appearance when the case under Section 125, Criminal Procedure Code was taken up by the lower Court, the trial Magistrate on being satisfied that there is sufficient cause for non-appearance, passed the impugned order and has set aside order Annexure P3. He also contends that respondent is continuously paying maintenance @ Rs. 800/- p.m. to the petitioners. Maintenance has been paid till February, 1998.
5. After hearing the rival contentions, in my considered view there is no merit in this revision petition.
6. From the order Annexure P3, it is evident that respondent was served, he was attending the Court as well but when the evidence was to be recorded, he remained absent, case preceded ex-parte and ex-parte maintenance order was passed on 12.12.1992, Annexure P3. Respondent filed revision against this order but withdrew it on 22.2.1994 as is evident from order Annexure P4. Respondent filed a petition under Section 126, Criminal Procedure Code before the lower Court on 8.2.1993. There is substance in this argument that before filing revision in the High Court respondent filed an application under Section 126, Criminal Procedure Code before the lower Court. From Annexure PI, it is evident that this application was filed on 8.2.1993 which was allowed on 16.8.1994. The Trial Court while appreciating the evidence adduced by the parties was satisfied that there was sufficient cause for the non-appearance of the respondent on the date when evidence was recorded in proceedings under Section 125, Criminal Procedure Code. Therefore, he set aside that order under Section 126, Criminal Procedure Code vide impugned order.
7. So far as the authorities relied upon by the petitioner’s learned Counsel are concerned, in Osman Gani’s case (supra), Calcutta High Court has considered the provisions of Section 488(6) of old Criminal Procedure Code which are in pari materiel with provisions of Section 126(2) of new Code. In this case, the Court has considered these two terms ‘wilfully neglecting to attend the Court’ and “wilfully avoiding service”. Since in that case also the petitioner was served and he was attending hearing, it was held that it was not a case of wilfully avoiding service but it was a case of wilfully neglecting to attend the Court. The learned Judge has interpreted that this wording means that it is attracted only when the opposite party cannot be made to or does not attend the Court at all but if the opposite party appears before the Magistrate, attends the Court and thereafter fails to appear, the proviso, in His Lordship’s view, would not be attracted and the order impugned in the case in petitioner’s favour would not be liable to be set aside under the second part of the proviso.
8. With the respect to the learned Judge, this is not the correct interpretation of proviso to Sub-clause (2) of Section 126 of the Code. Proviso to Sub-section (2) of Section 126 of the Code reads as under :
“Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.”
9. Thus proviso to Section 126(2) of the Code clearly provides that if the respondent is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte. But thereafter if such an order is passed the opposite party may apply to set aside that order by showing any good cause. It further provides that if Magistrate is satisfied that the respondent has shown good cause for his non-appearance on subsequent date and if he applies within 3 months from the date on which ex-parte order was passed, the Magistrate is competent to allow that application on such terms and conditions as he may think just and proper.
10. The petitioner’s learned Counsel has also relied on Joginder Singh’s case (supra) in which it is clearly held that a person aggrieved by an ex-parte order, would, qua the Trial Court, be bound by it, if he had been served with summon or notice of proceedings culminating in passing of that order and defaulted to appear or represent in those proceedings the order would be binding on him unless set aside by the Court of appeal or revision. This ruling does not talk of the provisions of Section 126, Criminal Procedure Code. Proviso of Section 126(2) quoted above clearly provides that if the ex-parte order is passed by the Magistrate if the respondent satisfies the Court that there was a good cause for his non-appearance on the date on which case was proceeded ex-parte against him, the Magistrate is competent to consider such an application and on being satisfied that there was a good cause for his non-appearance on the date of hearing, he is authorised to set aside the said ex-parte order. It is not necessary for such a party to file appeal or revision against this order, once specific remedy is provided under Section 126, Criminal Procedure Code.
11. Finding no merit in the revision, it is hereby dismissed.