SURESH SHARMA Vs. SANGITA SHARMA

JUDGEMENT

(1.) This revision is directed against the order dated 08.09.2009 passed by Family Court, Raipur in Case No. 19/2009, by which, the applicant/husband's application for setting aside ex parte order of maintenance has been rejected by the Family Court finding no sufficient cause has been shown by the applicant within the meaning of Section 5 of the Indian Limitation Act, 1963 (henceforth 'the Act, 1963'). The core facts necessary for disposal of this revision are as under:--

(2.) Shri Pankaj Agrawal, learned counsel appearing for the applicant would submit that though the application under Order 9, Rule 13 read with Section 151 of CPC was filed by the applicant, but the substantive provision for setting aside ex parte order is under proviso to sub-section (2) of Section 126 of the Code. He would further submit that ex parte order of maintenance was passed on 30.09.2008 and the application for setting aside ex parte order of maintenance was filed on 22.01.2009, thus, there is delay of 22 days only, for which proper reason has been assigned that he was medically unfit and under treatment, therefore, impugned order be set aside and the Family Court be directed to hear and dispose of the main application filed under Section 125 of the Code on merits.

(3.) Smt. Meena Shastri, learned counsel appearing for the non-applicant would submit that the present revision as framed and filed is not maintainable as the remedy of the applicant is to file miscellaneous appeal under Order 43, Rule 1(c) of Code of Civil Procedure. Alternatively, she would further submit that no sufficient cause has been shown by the applicant for delay in filing the application for setting aside ex parte order of maintenance.