MOHAMMAD ALI Vs. SAIRA BEGUM AND OTHERS

JUDGEMENT

(1.) This revision is filed under against the order dated 3.11.93 passed by the Judge Family Court, rejecting the restoration application made by the revisionist and also for setting aside ex-parte order dated 18.5.93 whereby respondent No.1 has been granted maintenance allowance at the rate of Rs. 300.00 per month and respondent No. 2 and 3 at the rate of Rs. 250.00 per month each till their attaining majority. I have heard learned counsel for the revisionist and perused the material brought on record. Notices were issued by this court to respondents and according to the report of the Chief Judicial Magistrate Meerut, notice to the respondent No. 1 has been served. Notices on respondent Nos. 2 and 3 have also been served through their guardian respondent No. 1 but despite notice nobody is present to represent any of the respondents at the time of hearing. Learning counsel for the revisionist has submitted that the revisionist is ready to pay the maintenance allowance as ordered by the Family Court Meerut in its order dated 18.5.1993 but he must be given an opportunity of hearing against the ex parte order of maintenance allowance, he has, therefore, submitted that even though the impugned order for payment of the maintenance allowance is an ex parte yet he shall continue to pay maintenance allowance. As regards lack of hearing I find that the revisionist had received notice under Sec. 125 Criminal Procedure Code but on subsequent date he remained absent and as such learned Magistrate proceeded with the case and passed an ex parte order under sub-section 2 of Sec. 126 of Criminal Procedure Code. The revisionist has filed application within 90 days for setting aside the ex parte order and providing an opportunity of hearing to him. He also adduced his evidence in support of the written statement already filed by him. Learned Judge of the Family Court was however not satisfied with the ground of the illness as application was not supported by a medical certificate and he therefore, rejected the application. It is true that learned judge can insist for the submission of medical certificate in support of the ground of illness and for that, he should have given an opportunity to produce the medical certificate in support of illness, if it was possible to do so after the recovery of revisionist from illness. However, in the interest of justice and also for providing an opportunity of hearing, learned judge should not have insisted on the production of medical certificate if it was not possible after illness period but should have instead granted time for production of his evidence. A hyper technical view taken by the learned judge resulted in the negation of justice. Therefore, I consider it necessary to interfere with matter on the ground of impropriety so as to give an opportunity of hearing. The revision is, therefore, allowed and the impugned orders dated 18.5.93 and 3.11.93 are hereby set aside subject to the condition that the revisionist shall continue to pay maintenance allowance to respondent No. 1 his wife at the rate of Rs. 300.00 per month and respondent Nos. 2 and 3 his daughter and son respectively at the rate of Rs. 250.00 per month each. Learned judge shall proceed with the hearing of the application of revisionist after giving him an opportunity to produce the evidence in support of the written statement and after concluding the hearing of both the parties, learned judge shall decide afresh the admissibility and quantum of the maintenance allowance on the basis of evidence adduced by the parties. The amount of maintenance allowance paid by the revisionist in pursuance of this order and in pursuance of the ex parte decree shall be liable to be adjusted in the light of the final decision to be given by the learned judge. Both the parties are hereby directed to appear in the court of Family Judge on 15th December,1994. Let a certified copy of this order be sent to the learned judge Family Court Meerut for information and necessary compliance.