HI^H COURT OF CHHATriS@ARH^LIXiASB^ Cr'.M.P,N«».110of2008 Petitjoner Vjctore Toppo, son of Libon Toppo, aged Qbout 38 years, case Uraon, viElage Kaiiya, Police Station Naraycnpur/Tahsil Bagicha, District Jashpur, Chhatt'isgarh. Respondents Versus 1. Smt.Slowriya Kujur, wife of Victore Toppo, aged abput 30 years, caste Uraon. 2. Minor* Ajs't Kumar, ^?n of VSctore Toppo, aged about 10 years, Through Naturat guardsan Smt.^Sowriya Kujur, residence of Bachraon, PoJice Station Naroyanpur, Tahsjl Bagicha, Di^trjct Jashpur, Chhatt-isgarh. (Petltion under Section 482 of the CrPC) (SB; Hon'bleMr.T.P. Sharma, J.) Shr? C.J.K.f^ao/counsei for the petitioner. Shri ftoop Naik, counsel for 1+ie respondents. c^: O^DER (Passsd on 3rd September, 2009) 1. The petitioner has fited this petition under ^ction 482 of the Code of Criminal Procedure, 1973 (in short tthe Code') for qyashment of the order dated 5.10.2007 passed by fhe Additional Sessions Judge, Jashpur, Link Kunkuri, in Crsminal Revision No<10/2007 affjrmin9 the order dated 2.5.2006 passed by the Judicia! Magistrate Ftrst Class, Jashpur, m Crimiani MJC No.21/2006 whereby l@amed Jydicial Maglstrate Fi^t Class has rejected the c^plication flled tmder Section 126(2) of the Code for sett-ing asicte the ex-parte order1 dated 28,8<2004 passed by the Judrcial AAagistTOte prst CJass, Jashpur Nagar, m Crlminal AAJC No.17/2004 whereby le<xrnec! JudJctoJ .Magistrate pirst Class has awarded the maintenQnce of fts.600/- per ffon1+i to each of the respond^rs uncter section 125 of the Cocte. Q-- 2. The order is challenged on the grouncj that service of notice has never been effected upon the petitsoner and without seryice or proper ^ryjce, 1+ie Court bebw has passed the ex-parate order and refysed to set aside the ex-parate order on the apptication of 1'he petitioner and thereby committed lllegaijty and has not acted in accordance with the provisions of the Code. 3- I haye heard le<imed counsel for 1tie partjes and perysed th@ order impugned, copy of the applicatson fjled under Section 126(2) of the Code, copy of the order dated 2,9.2006 passed by the Judieid Ma9jstrate Fi^st Class, Jashpur Nagar and copy of order sheet of Criminal MJC No.17/2004 passed by the Judicia! Magistrate pirst Class. 4. Learned counsel for the petitioner submits that the petltioner is husband of respondent No.l and father of respondent No.2/ Ex-parte order of maintenance has been passed agai^st the petittener in Crminal ^JC No.17/2004. When the petitioner came to know ©fthttt orct^r, he opplied for sett-ing aside the ex-parte order which hcis dismissed by the Judicial Magistrate Pirst Class and same has been affirmed in Crimincil Revision- Learned counsel further submits that no notice has been seryed upon the petitioner and order passed ex-parta te not sustasnable under 1+ie taw. 5. On the other hand, tearned counsel for the respondents supported tha order Impugned and submits that notice has been served ypon the petitioner by re9ist@red post and the same fe suffsdent seryice of notice. The petjtioner has dellberately not caused his appearance before the Court below, therefore, the C@urt below wc^ jystified in passing the order impugned. 6. It is not disputed that ex-parte order of maintenonce has be^n pas^d against the petitioner who is husband of respondent No.l and father of respondent No,2. First order she^t dated 24.5.2004 of Crimlnal MJC NoJ7/2004 reveds that thc-rourt be!ow has directed to pdy proce^ ir- '^ B/- -^- fee for jssuance of notic^, but has not directed to pay process fee for reQl^tered service by registered post, but second order sheet dated 25.6.2004 reyeals that notlce sent Ihrough registered post was returned back with an endor^^ment by refusal and on the basis of such refu^J/the tna! Court has proceeded ex-parte agasnst Ihe petitjoner and passed the order awarding mointenance. When the appdcatlon for setting aside the ex-par'te order' was filed by 1+ie pet?tioner;then after takin9 the rep!y, the Court below has disrpissed the Gpplicatlon without providing an opportunity to adduce the evidence to the parties to proye the seryice of summons and rebutt'ed the same. 7. The order rejecting application for setting aside ex-parte order and order proceeded ex-parte agdnst the petitioner are not basedl on second princlple of law, Opport-unity of hearing {Aud! Altenfm PBlt m) m sine qua rxfn for dispensing the justice and no party shovld be eondemned without providing an opportunity of hearing. The order of maintenance without providing an opportunity of hearing, order refusing to set aside such order and order jmpugned are not sustainabte under the law and wifti a view to secure the encts ofjustice, they deserve set aside. 8. Con<%quently/ the petition Ss allowed. Order impugned, order passed by the JucJicJaS Magjstrate First Ciass and ex-parte order of mamtenance are hereby set aside, The parties are dlrected to <^ipear before the Judicial Magistrate pirst Class, Jashpyr on 24,9<2009. Taktng in1x> consideration the fact that respondents NoJ and 2 are wife and son of the petitloner, w?th a view to saye them from immediate destltutbn ond yagrancy, »t is directed that the petltioner shail pa)/ snterlm maintencxnce of Rs.600/- per month to eadi of the respondents from today til! decision of the application for moiintenQnce fitedonbeha!f of the re^Dondents. 1 Sd/- T.P. Sharma Judge