Ashok Kumar Sharma v. Shashi Bala : 2010 (2) LRC 132 : Law Suit (Del) 2771
Section 125-Maintenance-Dismissal of application for setting aside of ex parte order-Revision-Some lapse on part of petitioner in not following up petition under s. 125 of CrPC appears to be shown-It is started that mother of petitioner was suffering from cancer and expired during this period and being a resident of J&K , it was not possible for petitioner to repeatedly come to Delhi-Counsel for petitioner states that petitioner ready to deposit an amount of rupees thirty five thousand before trial court without prejudice to his rights and contentions-In view of facts and statement made by counsel for petitioner, impugned order set aside and allowed-Amount will be released and paid to respondent on her entering appearance before trial court subject to final outcome of the petition.
Held : There appears to be some lapse on the part of the petitioner in not following up the petition under Section 125 of the Code, filed by the respondent after he was served and had entered appearance in January 2005. Due to nonappearance, the petitioner was proceeded ex parte on 22nd November, 2005 and ex parte judgment was passed on 28th January, 2008. There is a gap of nearly two years between the two dates. It appears that the petitioner did not get in touch with his lawyer during this period.
It is stated that the mother of the petitioner was suffering from cancer and expired in October, 2007. It is also stated that the petitioner is a resident of Jammu & Kashmir and it was not possible for the petitioner to repeatedly come to Delhi. Learned counsel for the petitioner further states that the petitioner will deposit an amount of Rs.35,000/- before the Trial Court within one month from today without prejudice to his rights and contentions.
In view of the aforesaid facts and the statement made by the learned counsel for the petitioner in Court today, the impugned Order dated 30th July, 2008 is set aside and accordingly the application filed by the petitioner for setting aside of the ex parte Order dated 22nd November, 2005 is allowed. However, in case the petitioner does not make payment of Rs.35,000/- within one month, the impugned Order dated 30th July, 2008 shall be implemented and executed. Rs.35,000/- will be released and paid to the respondent on her entering appearance before the learned Metropolitan Magistrate subject to final outcome of the Petition.