IMPORTANT POINT
In the absence of recording by the Magistrate indicating that the respondent was wilfully avoiding service or was wilfully neglecting to attend the court, the Magistrate would not have jurisdiction to proceed ex-parte u/s. 126(2) of Cr.P.C.

JUDGMENT

L. Rath, J. - This revision is directed against an order passed by the learned S.D.J.M." Bhadrak refusing to set aside an ex parte order of maintenance passed against the petitioner. The facts in brief are that the opposite parties, respectively the mother and daughter, filed Misc. Case No. 182/88 on 21.12.1988 claiming maintenance of Rs. 300/- per month from the petitioner. Earlier, a Misc. Case filed by the opposite party No.1 in the same Court numbered as Misc. Case No. 18/86 for maintenance had been dismissed for default on 5.4.1988. On 21.12.1988 notice was directed to be issued in M.C. No. 182/88 fixing 30.1.1989 for appearance. The notice having been returned back unserved, order was passed on 30.1.1989 for re-issue of the same fixing 7.2.1989 for service return. On 7.2.1989, the learned S.D.J.M. recorded the following order:

"Order No.3 dated 7.2.1989 :

Advocate for petitioner files hazira. S.R. back being served by (sic) affixture on refusal. Petitioner proves service. Service on O.P. is made sufficient. O.P. is absent. Hence set ex parte. Posted to 15.3.1989 for ex parte hearing."

The matter was thereafter heard ex parte and disposed of on 20.3.1989 granting maintenance to the opposite parties at the rate of Rs. 300/- per month. Misc. Case No. 45/89 out of which this revision arises was filed by the petitioner on 11.4.1989 complaining of non-service of summons upon him, of the opposite party No.1 having not married him and opposite party No.2 being not his daughter through opposite party No. 1. It was stated that he is an unemployed student preparing for examination, that his family and the family of the opposite parties had enmity with each other, that he is yet unmarried and that they belong to different communities. In the case, the petitioner examined himself as P.W. 1 and another Bharat Ch. Panda has been examined as P.W. 2 as regards service of summons on him as reported by the process server. The opposite parties did not examine any witness to oppose restoration. The learned Magistrate rejected the petition on 23.1.1990 disbelieving the evidence led by the petitioner and holding that he had sufficient notice in the matter.

2. Miss Das in assailing the order urges of prima facie the summons not to have been served upon the petitioner; the learned Magistrate having acted without jurisdiction in setting the petitioner ex parte; and that the conclusion reached regarding service of summons on the petitioner being wholly contrary to the evidence on record. It is her submission that since the summons purported to have been served upon the petitioner was handed over to the process server by the Nazir on 31.1.1989 as appears from the endorsement on the summons itself and the report of the process server being that he offered the summons to the petitioner at 9.00 a.m., read out the same to him and on his refusal to accept, affixed the notice on his door; is not believable as the summons could only have been handed over to the process server on 31.1.1989 during office hours and hence it could not have been offered to the petitioner at 9.00 a.m. that very day. The submission is repelled by the learned counsel for die petitioner contending that the report of the process server does not show the summons to have been offered to the petitioner at 9.00 a.m. but only to have been offered at 9 hours. I am not persuaded to accept the submission of Mr. Misra in this regard since ordinarily 9 hours would mean, the time in the morning and if the summons would have been offered at night, the process server would have reported the same having been offered at 9 p.m.. It thus raises a reasonable suspicion, as submitted by Miss Das, that summons had not been served on the petitioner at 9.00 a.m. That apart, the provision of Section 126(2), Cr.P.C. authorises the Magistrate to proceed to hear and determine the application under Section 125, Cr.P.C. ex parte if he is satisfied that the person against whom the maintenance order is