10. This decision has been followed in c. A. George v. Chacko joseph (1953 klt. 542). It was held that as the procedure prescribed in chapter vi of the code for compelling appearance of parties has not been followed in the case, It has to be held that the learned magistrate has no jurisdiction to determine the case exparte and that the revision petitioner has shown good cause for setting aside the exparte order.
i am in respectful agreement with the view taken in these cases.
11. The direction in sub - s. (6) of s. 488 is peremptory that all evidence under chapter xxxvi of the code shall be recorded in the presence of the husband or father, As the case may be, Or when his personal attendance is dispend with, In the presence of his pleader and the magistrate cannot proceed to hear the case exparte except on being satisfied that the respondent has either wilfully avoided service of summons or has willfully neglected to attend the hearing. It is therefore, Necessary that there must be proper service of summons on the respondent and it is only then that it could be said that there is wilful avoidance or neglect in attending the court.
12. It is then argued that this petition has been filed beyond three months of the order and, Therefore, In any view it is barred and has to be dismissed. The proviso shows that the exparte order can be passed only after due service of summons and when the magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend court and it is specifically stated 'any order so made' is to be set aside within three months. If the exparte order is passed without complying with the provisions of the section, Then the bar of three months will not apply.
13. In this case the mandatory rules of procedure relating to the form and service of summons have not been observed and the magistrate has, Therefore, No jurisdiction, To pass the order and the order cannot be allowed to stand.
14. The order of the magistrate is, Therefore, Set aside and the case is sent back to the court below for fresh disposal in accordance with law.
allowed.