JUDGMENT G.B. Singh, J. - This is a petition under Section 482 Criminal Procedure Code, for quashing the ex parte order dated 28-10-1980, awarding maintenance allowance at the rate of Rs. 100.00 per mensem to Smt. Meraz Jahan, opposite party on her application, under Section 125 Criminal Procedure Code. 2. Smt. Meraz Jahan gave an application for maintenance on the allegation that her husband Sharafat Ali has sufficient means but neglecting and refusing to maintain her. The allegation that the husband is living in adultery and treats the applicant with cruelty had also been made in the application. Sharafat Ali, petitioner, contested that application and filed his written statement pleading that Smt. Meraz Jahan is his divorced wife and she is not entitled to any maintenance. The allegation of adultery and cruel treatment were also denied. On the date of hearing Smt. Meraz Jahan, applicant, examined herself as P.W.1 and examined two witnesses Smt. Jaibul Nisha P.W.2 and Riyaz Ahmad, P.W.3. Sharafat Ali, opposite party, on the other hand examined himself as D.W. 3 and two witnesses Wahazul Haq, D.W.1 and Bismillah, D.W.2. He produced an unregistered Deed of divorce dated 18-9-1978 also in support of his case. The learned Magistrate believed the version of the opposite party and dismissed the application for maintenance on 21-6-1979. Against that judgment Smt. Meraz Jahan preferred revision which was allowed on 17-3-1980 by Sessions Judge, Sultanpur. He remanded the case with certain directions. It appears that after remand, several dates were fixed in the Court of the Magistrate and ultimately 19-8-1980 was fixed for hearing. On that date Smt. Meraz Jahan applied for adjournment and on her application the case was fixed for 3-10-1980. The order-sheet shows that on 3-10-1980, Sharafat Ali, opposite party did not appear and in his absence the statement of Smt. Meraz Jahan, P.W.1 was recorded and an ex parte order was passed on 28-10-1980 awarding maintenance at the rate of Rs. 100/-per mensem to Smt. Meraz Jahan, opposite party. On 25-11-1980, Sharafat Ali, moved an application for setting aside the ex parte order. It was rejected by the learned Magistrate on 20-10-1981, observing that the reasons given by him for non-appearance on 3-10-1980, are not acceptable. Against this order Sharafat Ali preferred revision but it was dismissed by the learned Sessions Judge, Sultanpur on 2-9-1982. Sharafat Ali, then filed the present petition. 3. It was rejected by the learned Magistrate on 20-10-1981, observing that the reasons given by him for non-appearance on 3-10-1980, are not acceptable. Against this order Sharafat Ali preferred revision but it was dismissed by the learned Sessions Judge, Sultanpur on 2-9-1982. Sharafat Ali, then filed the present petition. 3. On the date of hearing none appeared on behalf of Smt. Meraz Jahan, opposite party though the case was taken in revision of list. Shri S.K. Mehrotra, learned counsel for the petitioner was, therefore, heard at length and the record of the lower court was perused. 4. It has been argued by the learned counsel for the petitioner that under proviso to sub Section (2) of Section 126 Criminal Procedure Code, the Magistrate should have set aside the ex parte order because a good cause had been shown by the petitioner. In this connection he pointed out certain facts on record. In my opinion his contention must be accepted. 5. The explanation given by the petitioner was that on 19-1-1980, he was some how informed by his learned counsel that 29-10-1980 was fixed for hearing so he did not put in appearance on 3-10-1980. He had filed an affidavit in support of this contention. It has also been stated by him that on 29-10-1980 he come to Court but his counsel was not available so he went back to his village but unfortunately thereafter he fell ill due to which he could not move the application for setting aside the ex parte order earlier. The application was moved on 25-11-1980. The medical certificate filed by him further shows that he was suffering from typhoid from 30-10-1980 to 23-11-1980. These allegations undoubtedly show that a plausible explanation had been given by the petitioner for his non-appearance before the Court on 3-10-1980. It appears that the learned Magistrate did not accept this contention of the petitioner because his counsel had signed the order-sheet dated 19-8-1980 on which 3-10-1980 had been fixed. In spite of signature by the counsel, he could inform wrong date to the petitioner as contended by him on account of rush of work, slip of tongue etc. It appears that the learned Magistrate did not accept this contention of the petitioner because his counsel had signed the order-sheet dated 19-8-1980 on which 3-10-1980 had been fixed. In spite of signature by the counsel, he could inform wrong date to the petitioner as contended by him on account of rush of work, slip of tongue etc. When the explanation given by the petitioner is considered in the light of the facts that the application for maintenance had been earlier dismissed on merits on objection of the petitioner and his case for divorce by consent of parties had been accepted by the Magistrate, it cannot be easily accepted that the petitioner deliberately failed to appear on the date fixed so that delay may occur in the disposal of the case. Thus, the explanation given by the petitioner for his absence was acceptable and it could not be held that the petitioner wilfully neglected to appear before the Court on the date fixed. 6. Sub section (2) of Section 126 lays down that all evidence in the proceedings under Section 125 Criminal Procedure Code shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. The word "shall" imposed a mandatory duty upon the Court to record the evidence in the presence of Sharafat Ali, petitioner. The proviso to subsection (2) of Section 126 undoubtedly gives power to the Magistrate to proceed ex parte but he can do it when he is satisfied that the person against whom an order for payment of maintenance was proposed to be made was wilfully neglecting to attend the Court. The learned Magistrate did not record his such satisfaction in the order-sheet dated 3-10-1980, before proceeding ex parte. It can be argued that it is not necessary to record such satisfaction before proceeding ex parte if an observation to the effect that the husband wilfully neglected to attend the court on the date fixed is made in the ex parte order itself. It is significant to note in the present case, that the learned Magistrate did not make any clear observation in the impugned order nor in the ex parte order that Sharafat Ali wilfully neglected to attend the Court, His observations are to the effect that the explanation for non-appearance on the date fixed is not acceptable. It is significant to note in the present case, that the learned Magistrate did not make any clear observation in the impugned order nor in the ex parte order that Sharafat Ali wilfully neglected to attend the Court, His observations are to the effect that the explanation for non-appearance on the date fixed is not acceptable. The ex parte order could be set aside if the petitioner had shown good cause and the application for it had been moved within 3 months. In the present case the application had been moved within time and in my opinion a good cause had been shown. The application for setting aside the ex parte order should, therefore, have been allowed. 7. All these facts clearly show that the petitioner has been able to make out a case for interference in the exercise of the inherent powers of the Court, The petition is, therefore, allowed. The order dated 20.10.1981 rejecting the application for setting aside the ex parte order and the order dated 2-9-1982 passed in revision, are quashed. The order dated 28-10-1980 awarding maintenance ex parte is also set aside on payment of Rs. 200/- as costs by Sharafat Ali petitioner. The costs to be paid to Smt. Meraz Jahan within a month, failing which the ex parte order dated 28-10-1980 shall remain operative. The record shall be sent back to Chief Judicial Magistrate, Sultanpur, who may proceed with the case himself in accordance with law after issuing notices to the parties, or send it to some other Magistrate under him.