Order The petitioner, who is the respondent in M.C.No. 9 of 1988 on the file of the Sub Divisional Judicial Magistrate, Valliyur, has preferred this revision challenging the order of the trial Magistrate, dated 25th May, 1988 setting him ex parte and granting maintenance in favour of the respondents herein. 2. A few facts need narration. The respondent filed a petition under Sec.125, Criminal Procedure Code before the Sub Divisional Judicial Magistrate, Valliyur against the respondent and the same was taken on file as M.C.No. 9 of 1988. The trial Magistrate issued summons under Sec.61, Criminal Procedure Code to the petitioner herein, who had received it on 21.5.1988. The date of hearing had been fixed in the summons as 25.5.1988. 3. On the date of hearing, the petitioner did not appear in the trial Court, but had engaged a counsel to appear on his behalf and file a vakalat and take time for counter, after receiving a copy of the maintenance petition filed by the respondents. The trial Court accepted the vakalat presented by the counsel for the petitioner, but chose to act under Sec.126 of the Criminal Procedure Code setting him ex parte, on the view that the absence of the petitioner was wilful, though in fact this was represented by his counsel. The trial Magistrate has observed in Paragraph 4 of his order that the absence of the petitioner in Court on 25.5.1988 was wanton and wilful avoidance. It is also further observed that no permission had been sought from the Court for the absence of the petitioner on 25.5.1988. This according to the Magistrate posed the need to pass an exparte order in the main case itself. 4. I have heard Mr.P.Kulandaivelu, learned counsel appearing for the petitioner and Mr.Shanmuga Velayutham, learned counsel appearing for the respondents. 5. A perusal of the summons issued clearly postulates the appearance of the petitioner before the trial Court either in person or by a pleader. Respecting the summons issued, the petitioner engaged a counsel and the counsel had not only appeared before the trial Court, but had filed his vakalat, as well. The counsel had prayed for furnishing of a copy of the maintenance petition to facilitate his counter being filed. There appears to be practically no need for the presence of the petitioner at that stage in this proceeding. The counsel had prayed for furnishing of a copy of the maintenance petition to facilitate his counter being filed. There appears to be practically no need for the presence of the petitioner at that stage in this proceeding. If the Magistrate was of the view that the presence of the petitioner was necessary, he could have directed his counsel for the petitioner to see to it that the petitioner appeared before the Court on the next hearing date. There is no material on record for the Magistrate to arrive at the conclusion that the petitioner was wilfully avoiding appearance before the Court. That there could be no wilful avoidance is patent from the conduct of the petitioner having engaged a counsel and filing his vakalat, to get along with the proceedings. Even the summons issued permitted his appearance, ‘by pleader’. 6. Mr.Shanmuga Velayutham, learned counsel for the respondents referred to Sec. 126(2), Criminal Procedure Code which deals with the recording of evidence in proceedings initiated under Sec.125, Criminal Procedure Code. This postulates recording of the evidence in the absence of the husband when his personal appearance is dispensed with, but that could be done only if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made, was wilfully avoiding service or wilfully neglecting to attend the Court. That stage was not reached yet in this case. The case was at the threshold and was for the appearance of the petitioner and the proceedings have not reached the stage as yet of recording evidence. The exercise of judicial discretion must have dictated to the trial Magistrate to give sufficient opportunity to the petitioner to file his counter before proceeding further in this case. The order passed by the trial Magistrate is neither in consonance with law nor equity and is opposed to the fundamental Principles of natural justice. 7. The order of the trial Magistrate passing an ex parte order and awarding maintenance to the respondents is set aside. The case records will be sent to the Chief Judicial Magistrate, Tirunelveli, who will take this case on his file and dispose of it in accordance with law after affording reasonable opportunity to both the parties to get along with the enquiry. The Chief Judicial Magistrate, Tirunelveli will dispose of the case as expeditiously as possible. The case records will be sent to the Chief Judicial Magistrate, Tirunelveli, who will take this case on his file and dispose of it in accordance with law after affording reasonable opportunity to both the parties to get along with the enquiry. The Chief Judicial Magistrate, Tirunelveli will dispose of the case as expeditiously as possible. The records are to be despatched to the Chief Judicial Magistrate within one week from today. The revision petition is ordered accordingly. B.S. ----- Ordered accordingly.