A petition for maintenance dismissed for default of appearance before evidence is recorded cannot be restored as the order of dismissal is a judicial order and not an administrative order.

( 1 ) THE admitted facts of the matter are that Pramod Kumar Mittal and Smt. Kanchan Devi were married sometime in the year 1973. Four daughters were born. Presently the wife is living at Aligarh with her father. She moved an application which gave rise to criminal case No. 194/11 of 1981 against Pramod Kumar Mittal purporting to be under section 125 Cr. P. C. at Aligarh asking for a maintenance allowance of Rs. 400. 00 per month. A compromise was entered into between the parties and as a result thereof a sum of Rs. 200. 00 per month was fixed as maintenance allowance. Subsequently on 10/12/1984 an application purporting to be under section 127 Cr. P. C. seeking enhancement in the amount of maintenance allowance was filed by Smt. Kanchan Devi, which was registered as criminal case No. 83 of 1985. This petition was, however, dismissed on 14-4-1986, which was the date fixed for her evidence, because she did not present herself in the court on that date. Then a restoration application was moved before the Chief Judicial Magistrate, Aligarh and vide order dated 29-8-86 the Chief Judicial Magistrate, Aligarh directed the restoration of this petition under section 127 Cr. P. C. to its original number on payment of costs. A revision being No. 477 of 1986, was preferred by Pramod Kumar Mittal against this order of restoration and Mr. P. P. Gupta. Sessions Judge, Aligarh, vide his order dated 9. 4. 87 dismissed the revision holding that in view of the case Smt. Prema Jam v. Sudhir Kumar and another, an application for maintenance dismissed in default could be restored. Feeling aggrieved Pramod Kumar Mittal has now come to this Court under section 482 Cr. P. C. and seeks quashing of the proceedings of the criminal case No. 157 of 1986 application under section 127 Cr. P. C. as well as the order passed by the Chief Judicial Magistrate. Aligarh on 29-8-1986 (restoring the case to its original number) and the order passed by the Sessions Judge, Aligarh on 9/4/1987 in criminal revision No. 477 of 1986. It may also be mentioned here that subsequent to dismissal of the revision the matter went up before the II Additional Munsif-Magistrate, Aligarh before whom the criminal case under Section 127 Cr. P. C. was pending and he disposed of an application of interim maintenance vide order dated 24/4/1987 and this order is also sought to be quashed.

( 2 ) A very simple point of law is involved and it is whether if a complaint is dismissed (even though it may be under section 125 or 127 Cr. P. C.) it is capable of being restored to its number on the application by the aggrieved party.

( 3 ) THE learned Sessions Judge has placed reliance upon the case of Smt. Prema Jam v. Sudhir Kumar. It is a case of Delhi High Court and is reported in 1980 Cr. L. J. page 80. The Court was of the view that an application for maintenance, if it is dismissed for default of the appearance before evidence is recorded could be restored because the order of dismissal was an administrative order and not a judicial order and the Magistrate has power to set it aside. This case was subsequently considered by this Court in the matter of Smt. Akhtari Begam v. Ahmad Hussain and others and the Court had dissented from the view taken by the Delhi High Court. It was held that an order passed under section 125 Cr. P. C. cannot be deemed to be an administrative order. It is a judicial order because the revision lies against such final order. Modification of the order can be made under the provisions of the Criminal Procedure Code and for default in carrying out the order of maintenance the defaulter can even be sent to jail for the whole or any part of each months allowance remaining unpaid after the execution of the warrant. Therefore, an order of this nature cannot be considered to be an administrative or executive order. It is a pity that the Jaw laid down by this Court in the case of Smt. Akhatri Begam v. Ahmed. Husain (supra) was not brought to notice of the lear