S. M. SONI, J. ( 1 ) * * * * ( 2 ) IN the instant case, the application for maintenance was filed on 17th september 1990. The same came to be dismissed for non-appearance of applicantmother on 25th September 1992. It was ordered to be restored on file on 18th March 1993. Application for maintenance is filed for two minors also. Both the minors appear to be twins, aged 11 months old only on the date of the application. It will be relevant to state at this stage that it is the duty of the father to maintain his own minor children. It is not the choice of the minor children to choose whether to stay with the father or the mother. Till they are minors, they are entitled to stay with the mother and the mother is entitled to keep them in her custody. It is clear eleven months old children are neglected or refused to be maintained by the father. The question, therefore, is if an application is filed for and on behalf of the minors can such an application be dismissed by the learned Magistrate for no fault on their part and for the fault of the guardian like mother in the present case. In my opinion, when an application for maintenance is filed for the minors through its guardians, it was the duty of the Court to protect the interest of the minors before dismissing the application for default. If the natural guardian refuses to prosecute the application for maintenance either directly by so stating before the Court or indirectly by remaining absent from Court, it was the duty of the Court to appoint Nazir or some officer of the Court as guardian of minor and prosecute that application. In view of this state of affairs the order dismissing the application for maintenance on behalf of the minors is without jurisdiction, and authority and should be treated as nonest and the Court should have proceeded further with the application for the minors, as if no such dismissal order is passed. Ordinarily, the Court is the guardian of the minors, destitutes etc. and their welfare is taken care of. Ordinarily, the Court is the guardian of the minors, destitutes etc. and their welfare is taken care of. In case of finding that the mother has acted against the interest of minors, be it by remaining absent in the proceedings, the Court could not have passed any order on the application of the minors without removing the mother as the guardian and appointing someone else as the guardian of the minor children. ( 3 ) KEEPING in mind this fact situation it is now to be considered whether the impugned order is legal and proper. It is true that there is no provision in the Code for restoration of an application dismissed for default. Mr. Kakkad has relied on a judgment in the case of Maj. Genl. A. S. Gauraya v. S. N. Thakur, ( AIR 1986 sc 1440 ) that the Supreme Court has specifically held as under :"9. Sec. 249 of the Criminal Procedure Code enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Sec. 256 (1) of the Criminal Procedure Code enables a magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-apperance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Supp. (2) SCR 297 : ( AIR 1962 SC 876 ) filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the criminal Court to exercise such an inherent power. "10. In B. D. Sethi v. V. P. Dewan, (1971) 7 Delhi LT 162, a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. "10. In B. D. Sethi v. V. P. Dewan, (1971) 7 Delhi LT 162, a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. In para 9 the Court observes as follows :"9. As long as the order of the Magistrate does not amount to a judgment or a final order there is nothing in the Criminal Procedure Code prohibiting the Magistrate from entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order. During the course of the proceedings, a Magistrate has to pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them. . . "we would like to point out that this approach is wrong. What the Court has to see is not whether the Code of Criminal Procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the magistrate to recall the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with Sec. 367 (old Code) of the Criminal Procedure code as to what should be the contents of a judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction. " learned Advocate Mr. Buddbhatti contended that this judgment will not apply to the facts of the present case. According to Mr. Buddbhatti the said judgment refers to the dismissal of the application for non-appearance of the complainant. While in the present case, it is an application under Sec. 125 of the Code and Sec. 126 provides for a different procedure. Whether it is an application or a complaint dismissed for default can be restored under any of the provisions of the Code. The code is silent about the same. While in the present case, it is an application under Sec. 125 of the Code and Sec. 126 provides for a different procedure. Whether it is an application or a complaint dismissed for default can be restored under any of the provisions of the Code. The code is silent about the same. There is no provision either direct or indirect which can empower the Court to restore the order once passed. Mr. Buddbhatti contended that the Code provides for setting aside an ex-parte order passed against the husband vide proviso to sub-sec. (2) of Sec. 125 of the Code. It is true that the order of maintenance passed ex-parte can be set aside as reconsidered by the learned Magistrate on sufficient ground being shown for remaining absent by the husband. But the code is silent in case of dismissal of the application by default of the complainant. It is difficult to read this proviso to help the applicant, whose application is dismissed for default. Thus, there is no doubt that there is no provision for restoration of an order passed on default which is a final one. ( 4 ) MR. Buddbhatti contended that the proceedings are of civil nature. But the proceedings being under the Code of Civil Procedure Code cannot be attracted for the purpose of restoration of order passed ex-parte. The case of Ghaji umarmmohammad (supra) relied on by Mr. Buddbhatti is of no assistance to confirm the order passed by the learned Sessions Judge confirming the order of the learned magistrate restoring the application for maintenance. It is true that in that judgment it is held that the second application is maintainable. There is no bar for an applicant to make a second application for maintenance in case the first application having been dismissed for default. The provisions of Civil Procedure Code pertaining to res judicata or the principles of criminal law pertaining to aulrefois acquit and aulrefois convict under Sec. 300 of Criminal Procedure Code are not attracted in such cases. So it would be open for the applicant to make a fresh application. The judgment in the case of Rajan Priyadarshi, Dy. The provisions of Civil Procedure Code pertaining to res judicata or the principles of criminal law pertaining to aulrefois acquit and aulrefois convict under Sec. 300 of Criminal Procedure Code are not attracted in such cases. So it would be open for the applicant to make a fresh application. The judgment in the case of Rajan Priyadarshi, Dy. Commissioner of Police, Ahmedabad v. Premilaben Indravadan Patel, 1986 (1) GLR 558 ) is also of no assistance to the respondent as the Court has held there that the criminal Courts other than the High court also possess inherent powers to subserve the cause of justice was altogether in a different context. Therefore, in that case some conditions were imposed against the accused as to entering in a particular area and it was held that Courts have power to impose such conditions. However, the Court has specifically observed, "there cannot be any gainsay in the proposition that the criminal Courts subordinate to the High Court do not possess any inherent powers which the High Court possess under Sec. 482 of the Criminal Procedure Code", and the finding by the learned judge in case of Rajan Priyadarshi (supra) was in a different context and not pertaining to a final order. Learned Advocate Mr. Buddbhatti contended that the order passed by the learned Magistrate at the most can be said to be an irregularity. It can be said to be an irregularity provided the learned Magistrate has power to review the order once passed. ( 5 ) IN view of the principles laid down in the judgment referred hereinabove there is no inherent power with the Magistrate or any Court subordinate to High court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is equally true that there is no provision for dismissal for default of such an application also, more particularly when the minors are the applicants. There is no provision for restoration of the application dismissed for default also. In such a situation it was the duty of the learned Magistrate to decide the application on merits on the evidence available on record. In the facts and circumstances of the present case, it was the duty of the Magistrate to safeguard the interest particularly of the minors who are the applicants before the Court who have suffered for no fault of their own. In the facts and circumstances of the present case, it was the duty of the Magistrate to safeguard the interest particularly of the minors who are the applicants before the Court who have suffered for no fault of their own. It is not known as to why their monther who made an application on their behalf remained absent. In the circumstances, when the order passed by the learned Magistrate to restore the application served the purpose of safeguarding the interest in any case of the minors, this Court would not like to interfere with the order passed by the lower Courts while exercising its powers under Art. 227 of the Constitution of India. By exercising powers under Art. 227, it is likely to cause injustice to the minors who will suffer for no fault of their own. It is true that a fresh application can be filed by the guaradian on behalf of the minors but in a fresh application maintenance cannot be awarded from the date of filing of earlier application. That loss can hence be made good by fresh application. Therefore, any Court may not be able to provide for maintenance for that period. It is, therefore, just, in my opinion, to refuse to exercise powers under Art. 227 of the Constitution of India, hence the application is dismissed. Rule is discharged. .