JUDGMENT : L. Rath, J. - Both the Criminal Revisions basically arise out of the orders passed on a petition u/s 125, Code of Criminal Procedure filed by the opposite party and hence are disposed of by this common judgment. 2. The brief facts are that the learned J. M. F. G, Koraput before whom the petition had been filed by the apposite party posted the case to18-7-1987 for hearing on which date the Petitioner filed a petition through his advocate fat adjournment on the ground of his being sick and bed-ridden. The learned Magistrate rejected the petition since it was not supported by any medical certificate and asked the parties to get ready by 2.00 p. m. that day far hearing. Since the Petitioner as also his advocate were absent when the case was called far hearing, the Magistrate set the Petitioner ex parte and proceeded with examination of the witnesses of the opposite party and passed final orders an 20-7-1987 granting maintenance of Rs. 150/- per month. The Petitioner thereafter filed an application u/s 126, Code of Criminal Procedure to set aside the ex parte order during pendency of which the opposite party had filed Criminal Revision No. 18188 (10]/87 SJ) far enhancement of the quantum of maintenance which was disposed of by the learned Addl. Sessions Judge, Jeypore on 28-4-1988 enhancing, the maintenance to Rs. 250/- per month. After the enhancement order was received by the learned Magistrate, be passed orders on 12-5-1988 on the petition u/s 128, Code of Criminal Procedure rejecting the same being of the view that since the appellate court had ordered for enhancement of the quantum of maintenance, the petition u/s 126, Code of Criminal Procedure filed by the Petitioner to set aside the order of the original Court is to be rejected. Criminal Revision No. 287/88 has been preferred against the order of the Addl. Sessions Judge dated 28.4-1988 enhancing the maintenance whereas Criminal Revision No. 475/88 has been preferred against the order dated 12-5.1988 of the learned. Magistrate refusing to set aside the ex parte order. 3. Criminal Revision No. 287/88 has been preferred against the order of the Addl. Sessions Judge dated 28.4-1988 enhancing the maintenance whereas Criminal Revision No. 475/88 has been preferred against the order dated 12-5.1988 of the learned. Magistrate refusing to set aside the ex parte order. 3. The provision to decide a petition u/s 125, Code of Criminal Procedure ex parte is as provided in the proviso to Section 126, Code of Criminal Procedure and it stipulates that if the Magistrate is satisfied of the opposite party wilfully avoiding service or wilfully neglecting to attend the Court, be may proceed to hear and determine the case ex parte but, that any such order made may be set aside of good cause being shown within, three months from the date of the order. The essence of the proviso is wilful avoidance of service or wilful negligence to attend the Court and unless the Magistrate is satisfied of such conduct of the opposite party, he would have no jurisdiction to proceed ex parte. So far as the present case is concerned, since the opposite party had appeared, he could only be set ex parte if he had wilfully neglected to attend the Court. From the order passed on 18-7-1987 it does not appear that the Magistrate reached any such satisfaction. Merely because a petition for adjournment had been filed on the ground of illness and such petition was not supported by any medical certificate, there could not necessarily be all inference or presumption that the person concerned had peen wilfully avoiding the Court. Though a single non-attendance of the Court may, if the circumstances so warrant, also amount to wilful avoiding of the Court, yet ordinarily wilful a voidance of Court would invite a concept of some persistent conduct on the part of the defaulting party to infer an attitude of negligence in attending the Court. Besides, as has been held in Balan Naik v. Bhavani Amma Valsalamma and Ors. 1987 Cri.L.J. 399 (F.B.), a Full Bench decision of the Kerala High Court, it is desirable that a formal order of the satisfaction of the Magistrate regarding the wilful avoidance of the Court should be recorded though the order itself is not the condition precedent and the satisfaction reached must be discernible from the record. 1987 Cri.L.J. 399 (F.B.), a Full Bench decision of the Kerala High Court, it is desirable that a formal order of the satisfaction of the Magistrate regarding the wilful avoidance of the Court should be recorded though the order itself is not the condition precedent and the satisfaction reached must be discernible from the record. The Petitioner was perfectly within his rights to move the learned Magistrate to set aside the ex parte order invoking the statutory jurisdiction vested in him. As appears from the order of 12-5-1988, the learned Magistrate failed to exercise his jurisdiction to consider whether to set aside the ex parte order merely because the opposite party had been able to obtain an order of enhancement of maintenance from the revisional court. The order passed by the learned Additional Sessions Judge would be subject to the ex parte order being set aside and by itself could not restrict the learned Magistrate to exercise his jurisdiction under the proviso to Section 126, Code of Criminal Procedure In view of such facts and circumstances it must be held that the order dated 12-5-1988 is not sustainable and must be set aside and as a necessary consequence the order dated 18-7-1987 must also be set aside since it has come to the notice of the Court that the order had not been passed in accordance with law. But however considering the fact that the Petitioner had filed a petition for adjournment with only a bare statement of his illness without either a medical certificate or stating the nature of his illness, it would be fit and proper to set aside the ex parte order subject to payment of Rs. 100/- as cost to the opposite party which is also made a condition precedent to the restoration. As a consequence of setting aside the orders dated 18-7-1987 and 12-5-1988, it is needless to say that the order passed by the learned Additional Sessions Judge in Criminal Revision No. 287/88 enhancing the maintenance is also liable to be set aside and is accordingly quashed. 4. In the result both the revisions succeed as discussed above and the case is remitted back to the learned Magistrate who shall continue the proceeding from the stage it was on 18-7-1987. Revisions allowed. Final Result : Allowed