B.S.YADAV, J. - (1.) THE brief facts leading to this petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as code) read with Article 227 of the Constitution of India are that present respondent Jasbir Kaur had filed an application under section 125 of the Code against her husband Kehar Singh, who at the time of filing of the application was residing in Canada. Notices were sent to Kehar Singh by registered post but the registered covers or the acknowledgments were not received back. The learned Judicial Magistrate Ist Class, Jullundur who was trying the application, ordered that the service of Kehar Singh be affected by publication of notice in a newspaper (i.e. Nawan Zamana). When Kehar Singh did not appear on the date of hearing inspite of publication of notice in the newspaper, he was proceeded against ex-parte. After recoding the evidence, the learned Magistrate allowed Rs. 500/- P.M. as maintenance to Jasbir Kaur vide his order dated 9.5.1980.
(2.) ONE Ram Singh alleging himself to be attorney of Kehar Singh, Filed an application on 1.4.1982 for setting aside the above ex-parte order. In the application he alleged that he came to know about the said ex-parte order on 26.3.1982 and Kehar Singh had no knowledge about it upto that time. The said application was contested by Jasbir Kaur. She took up the plea that Ram Singh had no locus standi to file the said application nor the same was maintainable. Vide order dated 13.5.1982 the learned Magistrate dismissed the said application filed by Ram Singh as attorney of Kehar Singh filled revision petition which was heard by Sessions Judge, Jullundur. He did not find any merit in that petition and dismissed the same. Ram Singh has now filed this petition for setting aside the order passed by the learned Sessions Judge. In this petition many points were taken but it is not necessary to go into those grounds because the learned counsel for the respondent raised a preliminary objection to the effect Ram Singh as attorney of Kehar Singh could not file the application for setting aside the ex-parte order passed under section 125 of the Code of Criminal Procedure, the revision petition or the present petition. I am of the opinion that the said argument has force.
(3.) IT was not disputed before me by the learned counsel for the petitioner that proceedings under section 125 of the Code are criminal in nature and are governed by the provisions of the Code. The section alongwith connected ones has been incorporated in the self-contained chapter 9 of the code. The detailed provisions contained in section 125 provide both the right and the pre-requisite for an order of the maintenance. Section 126 lays down the procedure to be followed. It becomes necessary to reproduce here the relevant provision of section 126. "126(1) .........[vernacular ommited text]........... (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases : Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or wilfuly neglecting to attend the Court the Magistrate may proceed to her 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. (3) .........[vernacular ommited text]..........." ;