( 1 ) THIS is the reference made by a learned single Judge of this Court on 12-2-2002 in respect of order dated 19-7-2001 passed by the learned Judicial First Class Magistrate, pakala in Crl. M. P. No. 798 of 2001 in M. C. No. 5 of 2000.

( 2 ) THE brief facts that are necessary for answering the present Reference are that the first respondent herein filed a petition seeking to set aside the order dated 4-10-2000 whereunder the maintenance petition filed by her in M. C. No. 5 of 2000 was dismissed for default. She filed the said maintenance petition against her husband. When the case came up for hearing on 4-10-2000, for her non-appearance the court dismissed the maintenance petition for default. She filed a petition seeking restoration of the maintenance petition on the ground of ill health. Her husband contended that no medical certificate in support of the claim of ill health was filed and the default order could not be set aside. After hearing both sides, the learned Magistrate allowed the petition placing reliance on the decision reported in the case of Smt. Prema Jain v. Sudliir Kumar Jain. Against the said order, the husband filed Crl. R. C. No. 984 of 2001 which came up before the learned single Judge.

( 3 ) THE learned Judge, after considering the decisions of various High Courts and for the reasons mentioned in the reference order, is of the view that having regard to the fact that the trend of judicial decisions appears to be that an application for maintenance dismissed for default, can be restored and the Magistrate can entertain an application for setting aside the default order and pass appropriate orders thereon. Since this view is contrary to the view of this Court in Abdul wahed v. Hafeez Begum and others, the learned single Judge is of the opinion that the judicial discipline requires that the matter should be referred to the Bench consisting of two Judges to have an authoritative pronouncement in the matter. The Reference is accordingly posted before us.

( 4 ) WE have heard the learned counsel for both sides and also taken the assistance of senior Advocate Sri C. Padmanabha Reddy as amicus-cumie. The short point that falls for consideration before us is whether the magistrate is having inherent powers to restore a petition for maintenance, which was dismissed for default.

( 5 ) ACCORDING to the learned Single Judge that when the Magistrate has no power to dismiss the application filed under Sec. 125 for default and pass an illegal order, by dismissing the petition for default that to say, he has no power to rectify the mistake and the illegal order passed by him should be perpetuated would result in miscarriage of justice and the Court should rectify its own mistake as seen from the principle "actus curiae nemincm gravabit". It is also observed that the Apex Court was of the view that the proceedings under Section 488 of the Code of Criminal Procedure (old Code) are of civil nature vide Msf. Jngir Knur and another v. Jasivant Singh.

( 6 ) IN Abdul Wahed s case, it is held as follows:"the trial court is not empowered to pass an order dismissing the application for default and much less the application for setting aside the default order cannot be entertained. It is obvious that the trial court has no power to pass a default order. The revision has been filed before the Sessions Court against the order declining to set aside the exparte order and restore the same on file. The magistrate has no power to pass default order or set aside such ex parte order and the Sessions Court invoking the revisional jurisdiction cannot clothe such power with the Magistrate in the absence of provision to that effect in the Criminal procedure Code. Though the revision petition before the sessions court is confined to the order declining to set aside the ex parte order the Sessions court under the powers vested in revisional jurisdiction is justified in setting aside the original order dismissing the application for default. The

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