Smt. Rajwanti and Others vs Dinesh Kumar

Sunil Kumar Garg, J.—This revision petition has been filed by the petitioners against the order dated 13.10.1999 passed by the learned Judge, Family Court, Jodhpur in Criminal Misc. Case No. 91/98 whereby the learned Judge, Family Court accepted the application Under Order 9 Rule 7 C.P.C. and 126 Cr.P.C. dated 18.5.1998 filed by the respondents and set aside the exparte order dated 15.4.1998.

The facts giving rise to this revision petition are as follows:

(i) The petitioner No. 1 Smt. Rajwanti filed an application in the Family Court, Jodhpur under the provisions of Section 125 Cr. P.C. against the respondent on 14.1.1992 for demanding maintenance for herself and for her two children and a reply was filed by the respondent to that application on 5.5.1992 and proceedings in that case were going on.

(ii)It may be stated here that vide order dated 6.9.1993, the Family Court awarded interim maintenance to the petitioners at the rate of Rs. 250/- per month for petitioner No. 1 and @100/- per month for her two children, i.e. petitioners No. 2 and 3, total Rs. 450/- per month.

(iii)On 15.4.1998, the respondent did not appear in the Family Court and on that day order was passed against the respondent for proceeding against him exparte and after recording some evidence later on, vide order dated 21.4.1998 the learned judge. Family Court, Jodhpur passed a final order on the application of the petitioners filed u/s 125 Cr. P.C. and awarded Rs. 500/- per month to the petitioner Smt. Rajvanti and Rs-. 250 per month to petitioner Praveen Kumar and Rs. 150/- per month to Kum. Babi as maintenance.

(iv)Thereafter respondent filed an application in the Family Court on 18.5.1998 for setting asaid the final order dated 21.4.1998 on the ground that on 15.4. 1998 he could not appear in the court as he was not given leave as per the orders of the Collector, Pali. That application was contested by the petitioners.

(v)The learned Family Court vide order dated 13.10.1999 allowed the application filed by the respondent at the cost of Rs. 250/-holding that there was sufficient cause for non-appearance of the respondent for the period from 15.4.1998 to 21.4.1998.

Aggrieved from that order dated 13.10.1999, this revision petition has been filed.

In this revision petition, it has been argued on behalf of the petitioners that the order dated 13.4.1999 suffers from basic infirmities and, therefore, it should be set aside.

I have heard both and perused the record.

At the very outset, it may be stated here that as per Section 126 Cr.P.C, the order passed ex parte may be set aside if good cause is shown on the application and the said application for setting aside ex parte order must have been filed within three months.

In the present case, the application for setting aside exparte order dated 21.4.1998 has been filed by the respondent within limitation.

If good cause is shown, exparte order can be set aside. Whether cause is good or bad, it is to be considered by the Court according to the circumstances of the case.

In the present case, the learned Judge Family Court has treated the absence of respondent for the relevant period as sufficient cause and therefore, the order dated 13.10.1999 passed by the learned Judge, Family Court does not suffer from manifest illegality or irregularity.

From perusing the impugned order dated 13.10.1999, it does not appear that there is glaring defect in the procedure or there is manifest error which has consequently resulted in flagrant miscarriage of justice, Whether there is sufficient cause or not is a question of fact and this Court would not like to interfere in the discretion exercised by the learned Judge, Family Court.

Hence the present revision petition has no force and same is accordingly dismissed after confirming pie order dated 13.10.1999 passed by the learned Judge, Family Court in Criminal Misc. Case No. 91/98.