Judgment :- 1. The revision arises out of a proceeding under S.125 of the Code of Criminal Procedure, here-in-after called 'the Code'. First petitioner is the mother and 2nd petitioner is the minor child. They filed M.C. 27 of 1980 for maintenance against the respondent. It was decided ex parte by the Addl. Judicial First class Magistrate-I, Ernakulam. Coming to know of the decision, by getting notice for execution, the respondent filed Crl R.P. 49 of 1982 before the Sessions Court, Ernakulam with a petition to condone the delay, even though such a delay petition was not necessary. Delay was condoned by consent of parties on payment of cost. Thereafter, the revision petition was heard and it was allowed. The case was remanded to the Magistrate. The present revision is against that order. The only contention raised by the revision petitioners is that the Sessions Judge had no power to entertain and dispose of the revision. 2. Normally, an order for maintenance under S.125 of the Code is liable to be revised by the Sessions Judge. The ouster of jurisdiction to entertain a revision is claimed only on the basis of the proviso to S.126 (2) of the Code. S.126 (2) and the proviso retend thus: 126 (2) All evidence is 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 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." Under S.126 (2), the normal procedure is that all the evidence shall be taken in the presence of the person against whom the order is proposed to be made. In his absence, evidence could be recorded only if his personal attendance is dispensed with. In his absence, evidence could be recorded only if his personal attendance is dispensed with. In that case he must be represented by a pleader and the pleader must be present. These provisions are inserted in order to safeguard the interest of the person against whom the order is proposed to be made. The Magistrate gets jurisdiction to hear and determine the case ex parte only if the conditions incorporated in the proviso are satisfied. S.125 itself was introduced by way of public policy to avoid vagrancy and provide speedy relief to the persons mentioned in that section by way of summary procedure. Proviso to S.126(2) is intended to avoid that object being defeated by the delaying tactics likely to be adopted by persons against whom orders are proposed to be made. 3. In order to proceed ex parte as authorised by the proviso, there must be the satisfaction of the Magistrate regarding the existence of either of the conditions specified therein. He must be satisfied either that the person is wilfully avoiding the service or that he is wilfully neglecting to attend the court. It implies that a notice of the application should issue to the person from whom maintenance is claimed. The notice or summons issued must be served in accordance with the provisions of the Code. S.62 of the Code provides the procedure. The summons must be signed by the Presiding Officer as provided in S 61 and it must be served as provided in S 62. When the person cannot be found even after the exercise of diligence, there is the provisions under S.64. Service by affixture is provided under S.65, only when service under S.62, 63 and 64 becomes impossible. Regarding a person in service, there is the provision in S.66 to have the summons issued through the Head of the Office in which he is employed. In other cases, service of summons to persons outside the jurisdiction of the Magistrate should ordinarily be through a Magistrate having jurisdiction over the area S.68 provides that when summons is issued to be served outside the jurisdiction of the Magistrate, the Magistrate himself must have satisfaction of the service as provided therein. Where summons is not duly served or where there is no proof of refusal of summons as provided earlier, an order exparte will be illegal. Where summons is not duly served or where there is no proof of refusal of summons as provided earlier, an order exparte will be illegal. If there is wilful avoidance of service, that is a matter in which the Magistrate can have proof in that case itself as per the provisions earlier stated. Satisfaction of wilful neglect to attend the court can arise only if there is service or at least knowledge on the part of the counter-petitioner regarding the proceedings coupled with knowledge of the process issued in his favour. Such satisfactions are conditions precedent for authorising the Magistrate to proceed ex parte. Even though the Magistrate may not be bound to pass an order regarding his satisfaction of the conditions mentioned in the proviso, it is necessary that such satisfaction supported by the reasons must be evident from the ex parte order that he passes. 4. In this case the respondent is an officer employed in Karnataka. The petitioners initially supplied an incomplete address of the respondent. In that address summons was issued on several occasions That was through the 1nspector General of Police Karnataka State, Bangalore. Naturally, they were not served and there is nothing to prove service or even the fact that the summons was taken to the respondent or he was aware of the same. Petitioners have no case that and the Magistrate had no satisfaction that summons was either served or refused or otherwise avoided. There is nothing to indicate that summons was even taken to the respondent. The respondent was residing in another State beyond the jurisdiction of the Magistrate, but service through the Magistrate having jurisdiction over the area was never attempted as provided in the relevant sections of the Code mentioned above. What is seen from the records is that the last attempt to serve the summons was through the Inspector General of Police, Karnataka. He received the summons only on the date of posting, namely 26-11-1980 It was returned with a covering letter saying that fresh summons in advance with the correct address may be furnished. Thereafter, no summons or notice is seen issued, even though the petitioners have furnished some detailed address before court. He received the summons only on the date of posting, namely 26-11-1980 It was returned with a covering letter saying that fresh summons in advance with the correct address may be furnished. Thereafter, no summons or notice is seen issued, even though the petitioners have furnished some detailed address before court. On 6-4-1981, the petitioners filed an application before the Court requesting that over and above summons being issued from court, they may also be given a copy of the notice enabling them to send the same to the respondent by registered post. That petition was allowed. But there is nothing to show that any summons was issued either from court or through registered post by the petitioners. Even if summons by registered post was sent that may not be a legal service also. 5. While so, on 4-5-1981, the petitioners filed a miscellaneous petition before the Magistrate requesting that the respondent may be declared ex parte and the petition allowed. The grounds alleged are that there are two civil cases between the parties, namely, O.P. 108 of 1979 and O.S.630 of 1980 before the Munsiff Court, Ernakulam and that the respondent has entered appearance in those cases pursuant to summons. On that basis, the petitioners contended that the respondent is evading the process and hence he may be declared ex parte. Without going into the merits of those allegations, the Magistrate passed a single word order "Allowed". It was then that the Magistrate proceeded to record the exparte evidence of the petitioner and dispose of the case. In that order, the Magistrate has stated: "The counter petitioner has not appeared before court and it is reported that he is evading service of notice from this court. He has already accepted notice in O.S.630/80 of the Munsiff's court, Ernakulam and it is reported that he is appearing in that court. In the circumstances, I consider that the counter-petitioner is wilfully neglecting to appear before this court." This is the satisfaction entered by the Magistrate on the basis of the proviso to sub-section (2) of S.126. It is not known who reported that the respondent was evading summons and what was the evidence to that effect before the Magistrate. So also the acceptance of the summons in O.S. 630/80 was not a circumstance proved before the Magistrate. It is not known who reported that the respondent was evading summons and what was the evidence to that effect before the Magistrate. So also the acceptance of the summons in O.S. 630/80 was not a circumstance proved before the Magistrate. Even if he has appeared in that case pursuant to summons, that cannot be proof of the fact that he received summons in the maintenance case or that he was aware of the maintenance case. It was pointed out by the respondent that in O.S. 630/80 as well as in O. P. 108/79 he was issued summons in the correct address and pursuant to the summons he appeared before court and contested the matter, but subsequently the first petitioner after taking a long time withdrew from the scene and allowed those matters to go for default. Any how, those are all not matters for consideration by me. 6. The order passed by the Magistrate does not show that he had the satisfaction of either of the grounds according to the proviso to S.126 (2). Without any basis he has simply stated that the respondent is evading service and he was wilfully neglecting to appear before court. Whether the Magistrate could conduct an independent enquiry on a miscellaneous petition to see whether the counter petitioner is avoiding summons or wilfully neglecting to appear before court, it is a matter that has to be doubted. Anyhow for the purpose of entering the satisfaction the Magistrate will have to confine himself to the evidence in the case. If the petitioners are allowed to file miscellaneous petitions and adduce evidence regarding extraneous matters in proof of avoidance of service or wilful neglect in appearing before court, they may be able to manipulate evidence in the absence of the person against whom the decision is taken to proceed ex parte in the matter. Appearance in the civil cases and other matters were extraneous to the scope of the enquiry by the Magistrate. The fact that he accepted summons in another proceeding cannot show that the notice from the maintenance case was served on him or that he avoided the same. The records in the case evidently show that no notice was served on the respondent or that he avoided service or wilfully neglected to appear before court. The fact that he accepted summons in another proceeding cannot show that the notice from the maintenance case was served on him or that he avoided the same. The records in the case evidently show that no notice was served on the respondent or that he avoided service or wilfully neglected to appear before court. If so, it is clear that the Magistrate proceeded ex parte without the satisfaction required under the proviso to sub-section (2) of S.126. His action is definitely illegal. 7. The proviso says that the order could be set aside for good cause shown on an application presented within three months. In a case in which the person against whom the order was made had no knowledge of the proceedings or the order, the filing of a restoration petition within three months from the date of the order does not arise at all. If at all, he need file only a petition on getting knowledge of the order. He can only do so. Normally that provision may be intended to be applicable only in cases coming within the proviso. Otherwise the provisions to file an application to set aside the ex parte order and that too within three months of the order cannot have any meaning. "Good cause" mentioned in the proviso must have some nexus with the wilful avoidance of service or wilful neglect to attend the court. There is no question of a person to whom no notice was taken or who did not avoid the notice and did not refuse to appear before court, showing "good cause" within three months. At any rate three months provided from the date of the order cannot be applied in this case. The provision for filing a restoration application, in my opinion, may be intended only in cases of persons coming within the first part of the proviso, because compliance of that part of the proviso is an essential ingredient for empowering the Magistrate to proceed ex parte. When a Magistrate proceeds ex parte, without satisfaction of either of those conditions, the ex parte order itself becomes illegal. In such cases, it cannot be held that the person against whom the ex parte order is passed is bound to appear before the Magistrate and file an application for restoration as a condition precedent to approaching higher authorities in revision. In such cases, it cannot be held that the person against whom the ex parte order is passed is bound to appear before the Magistrate and file an application for restoration as a condition precedent to approaching higher authorities in revision. In my opinion, the illegal order could be challenged by a person against whom the order was made by filing a revision before the Sessions judge, who is competent to entertain the revision. If he chooses, he is also entitled to file an application for restoration before the Magistrate himself. 8. In this connection counsel for the petitioners relied on the decision in State of Mysore v. Ghousuddin (1972 Crl. L.J. 808). In that decision it was held: "In view of the failure of the husband to take steps as narrated above, i. e. to file an application before the said Magistrate within three months praying for setting aside the order now in question, the learned Sessions Judge could not have, in law, entertained the revision petition filed by the husband, in these circumstances. It is to be held that the revision petition filed by the husband in the Sessions Court at Bidar, is in law, not maintainable." Therefore, it was contended that the revision petition filed by the respondent before the Sessions Judge without filing a restoration application before the Magistrate was not competent. But that was a case under the provisions of the old Code in which the husband, as respondent, appeared before court pursuant to the summons through an advocate. Thereafter, he failed to appear before court for the subsequent postings either by himself or through the advocate. The advocate reported no instructions. It was on account of these facts that the Magistrate proceeded to dispose of the case as per the provision of the proviso. The principles laid down in that decision have absolutely no application to the facts of the present case. 9. Raghavan Unnithan v. Vijayamma (1962 KLJ 798) is a decision which, though not all fours identical to the one before me, the principles laid down are to a certain extent applicable to this case. In that case the following principles were laid down in relation to a case coming under S.488 of the old Code. 9. Raghavan Unnithan v. Vijayamma (1962 KLJ 798) is a decision which, though not all fours identical to the one before me, the principles laid down are to a certain extent applicable to this case. In that case the following principles were laid down in relation to a case coming under S.488 of the old Code. (1) An ex parte order could be passed only after due service of summons or only when the court is satisfied that the party is wilfully avoiding service or wilfully neglecting to appear before court. (2) Proceedings under S.488 are judicial proceedings in a criminal case where the provisions for issue of summons to the accused as well as persons summoned in the proceedings in the Code are applicable. (3) Service of summons by registered post is not permitted and in cases of such service, he cannot be proceeded ex parte under the proviso. (4) If an ex parte order is passed, without complying with the provisions of the proviso, the bar of three months also will not apply. 10. The order of the Magistrate is clearly in violation of the provisions. 1n fact it appears that the Magistrate had no satisfaction at all. He simply disposed of the case ex parte in the anxiety to have a disposal without even applying his mind on the satisfaction of the provisions or on the hardship that is likely to be caused to the respondent by the order without complying with the provisions of natural justice. The order is evidently illegal and the Sessions Judge was competent to entertain the revision petition. There is absolutely no illegality or irregularity in the decision arrived at by the Sessions Judge. 11. It appears that the petitioners are fighting shy of a contest and they somehow or other wanted the matter decided ex parte. Otherwise, there was no reason for filing this revision petition itself. This revision was filed in 1982 and the miscellaneous case is stayed. But for the revision the miscellaneous case itself would have been disposed of by this time on the merits. I see no merit in the revision petition and it is hereby dismissed. Dismissed.