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Rajasthan High Court · body

2023 DIGILAW 1036 (RAJ)

Rajeev Sharma v. Sheetal Sharma

2023-05-05

FARJAND ALI

body2023
ORDER : Farjand Ali, J. By way of filing the present revision petition under Section 397/401 of Cr.P.C., challenge has been made against the order dated 21.09.2022 passed by learned Judge, Family Court, No.2, Udaipur in case No.355/2020 whereby the application filed by the respondents under Section 125 Cr.P.C. was allowed and an ex-parte order was passed against the petitioner. Vide order dated 21.09.2022, the petitioner was directed to pay Rs. 20,000/- to respondent No.1 and Rs.10,000/- to respondent No.2 every month as maintenance. 2. Learned counsel for the petitioner submits that the ex-parte order passed by the learned Judge, Family Court may be quashed and set aside as the same has been passed without granting any opportunity of being heard to the petitioner and hence, adversely impacting his right to a fair hearing. He further submits that the procedure which was opted to effect the service upon the petitioner was not proper as the petitioner was not present in the country at that point of time. 3. Learned counsel for the respondent vehemently opposes the submissions made by learned counsel for the petitioner and submits that the impugned order has been passed in accordance with law and does not warrant any interference of this Court. 4. Heard learned counsel for the parties. 5. The provision stipulated under Section 126(2) of Cr.P.C. provides that the petitioner may be heard and the ex-parte order so passed may be set aside if good cause is shown on an application made within three months from the date of passing of the order. In the case at hand, the impugned order passed by the Court below was an ex-parte order passed on an application under Section 125 of Cr.P.C. and as per Section 126(2) of Cr.P.C., an application for setting aside the impugned ex-parte order can be preferred by the petitioner before the court below, thus, this Court deems it appropriate to dispose of the instant revision petition with liberty to the petitioner to move an application for setting aside of the impugned ex-parte order before the trial Court. 6. Accordingly, the revision petition is dismissed with liberty to the petitioner to move an appropriate application before the trial Court for setting aside the order passed ex-parte within a period of three months from the date of passing of this order. 6. Accordingly, the revision petition is dismissed with liberty to the petitioner to move an appropriate application before the trial Court for setting aside the order passed ex-parte within a period of three months from the date of passing of this order. The learned trial Court is directed to take a sympathetic view while considering condonation of limitation period of three months as significant amount of time has been lost by the petitioner on account of approaching the wrong forum. The learned trial Court shall pass an order in accordance with law after examining the issue regarding due service. 7. The stay petition also stands disposed of.