@ 1N THE HIGH COURT OF JUDICATURE IN CHHATTISGARH AT BIL ASPUR V39 @:§I) r7 1% [Io W.P. 22% of2o1o Mr. MA. Kishore Aged 37 years S/o. Shri M. Ramchandra Murthy R/o. House no. MIG 123, VUDA Colony Near Chinnamushidiwada Vishakapatnam (AIP‘) Vs Respondents 1. Smt. Amrita Valli W/o. . MAI Kishore, Aged 33 years R/o. Dixit Coloy, H.No.4, Kosa Nagar Bhilai District, Durg. Petitioner 2. Master Anikesh (Minor) S/o. MA. Kishore Aged 11/2 years Thru: Mother & Guardian Smt. Amrit Valli R/o. Dixit Coloy, H.No.4, Kosa Nagar, Bhilai District, Durg Jnww HQH COUET OF CHHATT_!S$ARH_AI_§[LA$PQR S5nieBe : n’ Sh' ‘ a r _. 3m Manoj Paranjpe, counsgi for the petitionef. WRW PEWHON UNDER gRTiCLE £2? OF THE ¢O§$IHU$1QRL§F INDIA ORAL ORDER (13.1 2.201 0) Heard. (2) in praceeéings zméer Sectian 125 of Cr.P.C. the learned Famiiy Court passeri an ex-parte order on W2010 (Annexure W3). The petitioner maved an app!ication on 10(05i2010. undei Section 126(2) of Cr.P.C. for setting aséde the ex-pade order. The Family Coutt had issued notices on tha said appiicatEon and directeti the petitioner to pay ptocess fee, haw-Jet on his faiiure to pay process fee as aiso for his absence on 30““ Juno. 2010. tho application was dismissed for want of prosecution. (3) immediateiy after the said order was passed. iearned counsei appearing on bahaif of/thé’bétitioner moved an appiication for recaiiing of the order passed regarding dismisoai on default on the ground that the mistake in payment of procees fee had occasioned because of the mistake of Cierk and his nomappearance was on account of the reason that the petitioner had inetructed the Lawyer to pay process fee through his Clerk and to appear along with an application under Seotion 13 of the Act seeking legal e assisbnee. Wiit Pewo 2?) Nohwi i Z319 PETWIONER ’ Mr. MA. Kishore r Vétsus RESPONDENTS Smt‘ Amrita Vam and another. \JW/ HZ? (4) Learned tria! Cour! has rejected the prayer for restoration 0n the ground that name of the Cierk who has cammitted dsfauft or the name of the Lawer wh0$e Cierk was assigned the said work of paymant of procass fee, have not been mentioned. (5) in the opinion of this Court, learned Family Court has acted in a hyper technicai manner while deaiing with the prayer for restoration of appiication under Section 126(2) of Cr.P.C. opportunity shouid have been granted to the petitioner to contest hie apptication on merits by hearing both the parties. {6) tn the opinion of this Court, the impugned order desewoe to be and is hereby set-asitte. Leamed counsel 'for the petitioner shalt now pay the process tee for service of notice to the opposite party within a period of 15 days from today, ii not paid eariier. and the learned Family Court shalt eed to decide the appiioation on merits atter appearance of the opposite party- (7) Since this petition is disposed of at the admission stage, respondents shaii be at liberty to move this Court for moditioation or variations of mis order on permissible ground, stands disposed of. v/ hra thereafter proe (8) With the above observations, the writ petition // Sdi- / (/(7 7/ Prashant Kumar Mis Judge ’tL 7—