IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO. 44 OF 2008 Deepak Sharma S/o late Ilam Chand Shrama, R/o near Hanuman Mandir, Gumaniwala, P.O. Virbhadra, Tehsil-Rishikesh, District Dehradun. ……… Revisionist Versus State of Uttarakhand and another. .……….Respondents Dated: October 13 , 2008 Sri B.N. Maulekhi, learned counsel for the revisionist, Sri M.A. Khan, learned Brief Holder for the State/respondent no.1. Sri Deepak Sharma, holding brief of Sri Ram Ji Srivastava, counsel for the respondent no.2. HON. DHARAM VEER, J. This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19(4) of the Family Courts Act, 1984 is directed against the judgment and order dated 13.02.2008 passed by the Addl. Judge, Family Court, Rishikesh in Misc. case no. 57 of 2007 Smt. Bhawna vs. Deepak Sharma u/s 126 (2) Cr.P.C. whereby the court below rejected the application of the revisionist for setting aside the ex-parte judgment and order dated 08.06.2007 as also against the ex- parte judgment and order dated 08.06.2007 passed by the Addl. Judge, Family Court, Rishikesh in case no. 19 of 2007 Smt. Bhawna vs. Deepak Sharma u/s 125 Cr.P.C., whereby the trial court passed the ex-parte judgment and order of maintenance directing the revisionist to pay a sum of Rs. 2,500/- per month to the respondent no.2 from the date of making the application. 2. Heard Sri B.N. Maulekhi, learned counsel for the revisionist, Sri M.A. Khan, learned Brief Holder for the State/respondent no.1. Sri Deepak Sharma, holding brief of Sri Ram Ji Srivastava, counsel for the respondent no.2. 2 3. The facts of the case are that respondent no.2 Smt. Bhawna Rohela filed a petition bearing no. 19/2007 u/s 125 Cr.P.C. against the revisionist for award of maintenance which was decided ex-parte vide order dated 08.06.2007 and a sum of Rs. 2,500/- was directed to be paid to the respondent no.2-Smt. Bhawna. Thereafter, the revisionist moved application u/s 126 (2) Cr.P.C. on 20.07.2007 for setting-aside the ex-parte order dated 08.06.2007 with the averments inter-alia that on 22.05.2007 hearing of the case u/s 125 Cr.P.C. and that of the divorce case u/s 13 of The Hindu Marriage Act, 1955 were fixed before the court of Addl. Judge, Family Court, Rishikesh and counsel for the revisionist has given information to the revisionist informing him that both the cases are fixed for 05.07.2007. On 05.07.2007 the revisionist could not appear before the trial court due to his illness and on that day when counsel for the revisionist appeared in the trial court then he came to know that in the case filed u/s 13 of The Hindu Marriage Act, 1955 the date was fixed as 05.07.2007 while in the maintenance case the date was fixed as 01.06.2007. As on 01.06.2007 the revisionist was not appeared before the trial court, hence he had no knowledge about the next date fixed in the maintenance matter, therefore the maintenance case u/s 125 Cr.P.C. was decided ex-parte by the trial court on 08.06.2007. After the maintenance case was decided ex-parte, the revisionist moved application u/s 126 (2) Cr.P.C. duly supported with an affidavit that he could not appear on 01.06.2007 as he had no knowledge about the subsequent date fixed by the trial court in the matter i.e. 08.06.2007, further the revisionist was in the impression that the date in both the cases was fixed as 05.07.2007. After hearing learned counsel for the parties the Addl. Judge, Family Court vide his judgment and order dated 13.02.2008 has rejected the application of the revisionist moved by him u/s 126 (2) Cr.P.C. 3 4. I have perused the judgment and orders dated 13.02.2008 as also the judgment and order dated 08.06.2007 passed by the court below and have also gone through the documents available on the record. From a bare perusal of the record it reveals that the revisionist could not appear before the trial court on 01.06.2007 and on the subsequent date i.e. 08.06.2007 fixed in the maintenance case u/s 125 Cr.P.C. due to the reason that he was not aware about the date fixed by the trial court. In these circumstances, the revisionist did not commit mistake intentionally or deliberately by not appearing before the trial court on the date fixed in the maintenance case, as he had no knowledge about the date fixed, therefore he did not appear on 01.06.2007 and the subsequent date 08.06.2007. After considering all the facts and circumstances of the case, I am of the view that the trial court has erred in rejecting the application of the revisionist moved by him u/s 126 (2) Cr.P.C. In these circumstances, the revisionist is liable to be allowed. 5. Accordingly, the revision is allowed. The impugned judgment and order dated 13.02.2008 passed in Misc. case no. 57/2007 u/s 126 (2) Cr.P.C. and that of the ex-parte judgment and order dated 08.06.2007 passed in case no. 19 of 2007 u/s 125 Cr.P.C. by the Addl. Judge, Family Court, Rishikesh are hereby set-aside. 6. The revisionist as also the respondent no.2 are directed to appear before the trial court on 3rd November 2008. The trial court is directed to decide the case u/s 125 Cr.P.C. on its merits, after affording proper opportunity to the parties to adduce their evidence whatsoever. (Dharam Veer, J.) 13.10.2008 NCM: