IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 159 of 2010 Sageer Ahmed S/o late Basheer Ahmed R/o Sahabaad Diwan Khana P.S. Premnagar, Bareilly, (U.P.) …Revisionist Versus Smt. Nazish w/o Sageer Ahmed R/o Line No. 4, Azad Nagar Haldwani District Nainital …respondent Mr. Siddhartha Sah, Advocate present for the revisionist. Mr. Lalit Sharma, Advocate present for the respondent. Hon’ble Prafulla C. Pant, J. Heard. This revision is directed against the order dated 15.07.2010 passed by the Principal Judge, Family Court, Nainital in criminal misc. case no. 17 of 2010 whereby said court has rejected the delay condonation application moved by the revisionist before the trial court under Section 126 (2) of Cr.P.C. for setting aside the ex-parte order directing to pay maintenance to the respondent. Brief facts of the case are that respondent- Smt. Nazish moved an application under Section 125 of Cr.P.C. before the Principal Judge, Family Court, Nainital seeking maintenance from her husband i.e. the present revisionist. It appears that processes were issued against the revisionist by the trial court but he did not turn up, as such, the trial court proceeded ex-parte. It was pleaded by the respondent before the trial court that the revisionist runs a cosmetic shop at Bareilly and his income is ` 20,000/- per month. On the other hand, the respondent (wife) was unable to maintain herself. After recording the evidence, the trial court directed the husband to pay maintenance at the rate of ` 3,000/- per month to his wife with effect from 17.06.2009. The revisionist moved an application on 18th February 2010 for setting a side the ex-parte order along with delay condonation application. After hearing the parties, the trial court dismissed the said applications on the 2 ground that the revisionist contention, that he was ill was not supported by any medical certificate. Hence this revision. Learned counsel for the revisionist submitted that the trial court has erred in law in rejecting the delay condonation application and application for setting a side the ex-parte order on the ground that the revisionist could not produce the medical certificate. In this connection, attention of this Court is drawn to the impugned order which itself shows that service on the revisionist was treated sufficient on the ground that he refused to accept the notice sent through registered post. In the circumstances, it is pleaded that the delay condonation application should have been allowed on the basis of the affidavit filed by the revisionist in support of the delay condonation application and application for setting aside the ex-parte order. From the impugned order, it does not appear that the fact relating to the illness of the revisionist was controverted by filing any counter affidavit by the present respondent before the trial court. As such, in the opinion of this Court, the trial court has erred in law in not accepting the explanation of the revisionist for delay in moving the application to set aside the ex-parte order, and rejecting the application to set aside the order dated 16.09.2009. Having considered the submissions of learned counsel for the parties and for the reasons as discussed above, to do the complete justice between the parties, this revision is allowed on the condition that the revisionist shall pay within a month from today to the respondent or deposit in her favour before the trial court as interim maintenance at the rate of ` 1,500/- per month payable with effect from 17.06.2009, failing which the revision shall stand dismissed and the orders passed by the trial court challenged before this Court shall stand affirmed. In case the condition is complied with the delay condonation application and application for setting aside ex-parte order shall stand allowed, and trial court shall proceed further on merits. (Prafulla C. Pant, J.) VKG 08.06.2011