H.N.Kapoor - (1.) THIS revision is directed against the order dated 28-3-1977 passed by the special Judicial Magistrate dismissing an application for setting aside the ex-parte order dated 2-2-1977 allowing the maintenance allowance of Rs. 175/-per month to the wife and the son. The learned Magistrate took the view that the revisionist was wilfully avoiding to appear in court in order to harass the lady.
(2.) I have seen the record and the order-sheet. It appears that the applicant was residing and working in Jamshedpur. He could be served for the first time only after 24-11-1976. He was required to file the written statement on 20 - 12-1976. His counsel did appear on that date and prayed for time for filing the written statement. The applicant had already sent the written statement to his counsel which was filed on 22-12-1976. The next date fixed was 2-2-1977 for appearance. It appears that on that date neither the applicant appeared nor his counsel put in apperance. The applicant then moved for restoration on 23-2-1977. He stated that he could get information about the ex-parte order only on 19-2-1977 through his counsel and came to Allahabad at the earliest possible opportunity on getting leave. He could not get leave earlier. I have already held in the case of Munna Lal v. Smt. Sankatha Devi, Cr. Revision No. 1768 of 1971 decided on 20-12-1973 that under the old Section 488 (6) of the CrPC restoration is possible even at a later stage. There is a similar provision under Section 126 (2) CrPC (New). In my opinion, the learned Magistrate has not exercised his discretion judicially in refusing to restore the case. The applicant was in service at Jamshedpur and so it does appear that he could not be present earlier because he could not get leave. I find that the learned Magistrate has not even considered the written statement filed in this case at the time of passing the earlier order dated 2-2-1977. Aft3r considering all the circumstances, i am of the opinion that further opportunity should be given to the revisionist of being heard. The revision is accordingly allowed. The order dated 28-3-1977 is set aside. The ex parte order dated 2-2-1977 shall also stand set aside on payment of Rs. 200/-as cost within a month. In default of payment of cost, the ex-parte order dated 2-2-1977 shall remain operative. The learned Magistrate is directed to pass the final order in this case expeditiously so that there may be no undue hardship to the lady and her child on account of non-payment of any maintenance allowance. It appears to be proper that this case be tried by some other Magistrate. The record shall be sent back to the Chief Judicial Magistrate who may proceed with the case himself or send it to some other Magistrate under him. Both the parties are directed to present themselves personally or through counsel before the Chief Judicial Magistrate on 8-3-1978. Learned counsel for the opposite party has also argued that the opposite party has not been paid any maintenance allowance so far. The maintenance allowance can always be ordered to be paid from the date of the application, Revision allowed.;