IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 71 of 2008 (M/S) Satya Narayan Nautiyal ………Petitioner Versus District Judge, Haridwar & another …….Respondents Shri Pankaj Kaushik, learned counsel for the petitioner Shri Sudhir Kumar, learned Brief Holder for the State/respondent no.1 Dated: 19 May, 2010 Hon’ble V.K. Bist, J. This Court vide order dated 18.03.2009 directed for ex-parte hearing of the case against respondent no.2. Today nobody is present for respondent no.2. Heard. Present writ petition has been filed by the petitioner challenging the order dated 07.07.2007 passed by the District Judge, Haridwar in Misc. Case No.48 of 2007, ‘Satya Narayan Vs. Smt. Krishna Nautiyal’ whereby the restoration application of the petitioner for recalling the order dated 06.01.2007 dismissing the Misc. Suit no.27 of 1999, ‘Satya Narayan Vs/ Smt. Krishna Nautiyal’ was rejected. Prayer has also been made for allowing the restoration application of the petitioner. Brief facts of the case, as narrated in the writ petition, are that the petitioner and respondent no.2 were married according to Hindu Rites on 01.12.1995 at village Sanwali District Tehri Garhwal. On 07.10.1996 a male baby was born from the wedlock of the petitioner and respondent no.2 After marriage the parents and brothers of respondent no.2 started interfering in matrimonial life of the petitioner and respondent no.2 and under her parent’s influence she started misbehaving with the petitioner. The respondent no.2 also started living with her parents and took baby with her. When the petitioner visited at the place of respondent no.2, the respondent no.2 misbehaved with him and extended threatening for his implication in false cases. Thereafter, the petitioner gave a notice on 19.07.1999 through his counsel demanding the custody of minor son but custody of minor son was not given to the petitioner. The respondent no.2 filed a complaint case under Section 468, 342, 323, 504, 506 I.P.C. against the petitioner, which was numbered as Case no.1437 of 1999. The petitioner also filed suit under Section 13 of Hindu Marriage Act. An application under Section 10 of Guardian and Wards Act, seeking custody of minor son was also filed by the petitioner, which was registered as Suit no.27 of 1999 –‘Satya Narayan Vs. Smt. Krishna Nautiyal’. The petitioner also moved an application under Section 12 of Guardian and wards Act, seeking permission that he may be permitted to meet his son and the respondent no.2 may be directed to provide the meeting of the petitioner with his son three or four times in a month. The learned District Judge instead of deciding the application under Section 12 of Guardian and Wards Act, decided the Suit no.27 of 199 finally vide order dated 25.07.2001. The petitioner preferred a First Appeal before this Court, which was numbered as First Appeal no.1081 of 2001, ‘Satya Narayan Nautiyal Vs. Smt. Krishna Nautiyal’. The sai appeal was finally disposed of on 19.05.2003 and order dated 25.07.2001 in Suit no.27 of 1999 was set aside and the learned District Judge was directed to decide the case afresh after affording opportunity to both the parties to lead evidence and decide the proceedings expeditiously within a period of six months from the date of production of certified copy of the order. It is further mentioned in the writ petition that copy of the order was filed in the Court on 21.07.2006. The case was fixed on 06.01.2007 but due to the absence of the petitioner the case was dismissed in default. The petitioner moved an application on 17.01.2007 under Order 9 Rule 4 and under Section 151 C.P.C. for restoration. In the said application the petitioner mentioned that the case was fixed on 06.01.2007 but, due to some mistake same was noted as 20.01.2007 by his counsel and due to this reason the petitioner as well as his counsel could not appear before the Court on 06.01.2007. The District Judge vide order dated 07.07.2007 dismissed the application of the petitioner. Against the order passed by the District Judge, the present writ petition has been filed. Learned counsel for the petitioner submitted that the ground for non appearance on 06.01.2007 was bonafide and not willful or deliberate. He further said that by mistake the counsel wrongly noted 20.01.2007 whereas the date fixed was 06.01.2007, and due to this reason learned counsel for the petitioner as well as the petitioner could not appear on the date fixed. He also mentioned in the application that due to illness the petitioner was unable to attend the case. after hearing learned counsel for the petitioner I am satisfied with the ground mentioned in the restoration application. It was not the petitioner who was at fault but it was the mistake of his counsel who wrongly noted another date in his file. The District Judge should have allowed the application filed by the petitioner. Consequently, the writ petition is allowed and the orders dated 07.07.2007 passed by District Judge, Haridwar in Misc. Case no.48/2007, ‘Satya Narayan Vs. Smt. Krishna Nautiyal’ and order dated 06.01.2007 passed by District judge, Haridwar in Misc. Suit no.27 of 1999, ‘Satya Narayan Vs. Smt. Krishna Nautiyal’ are set aside. Restoration application filed by the petitioner is allowed. Misc. Suit no.27 of 1999 is restored to its original number. The District Judge, Haridwar is directed to decide the case expeditiously. Urgency application (I.A. no.1713/2010) stands disposed of. ( V.K. Bist , J.) 19.05.2010 Arpan