SHAKEEL AHMAD KHAN Vs. STATE OF U P

JUDGEMENT

(1.) KRISHNA Kumar, J. This revision has been filed against the ex-parte, judg ment and order dated 24-5-1999. Learned Counsel for the revisionist contended that case was earlier dismissed for default of the revisionist. A restoration application was moved by the revisionist which was al lowed. However, after the restoration, no notice was given to the revisionist and the case was decided ex-parte, and when the revisionist moved an application for set ting aside ex- pane, judgment and order, the same was rejected vide order dated 9-1- 1998. It is contended that there is no provision for restoration of the petition under Section 125, Cr. P. C. Learned Coun sel for the revisionist was placing reliance upon 1976 ALJ page 779. However, in that case the Magistrate himself restored the proceedings which is not in this case and the case law is not applicable. Further another case law 1986 AWC page 995 relied by the learned Counsel for the revisionist is not in respect of the petition under Section 125, Cr. P. C. From the order dated 5-10- 1993 it is made out that the application was moved by the revisionist and because the opposite party was absent on that date of the dismissal, the applica tion was allowed, dismissal order dated 12-4-1993 was set aside and the petition was restored to its original number.

(2.) 1 perused the order of the learned lower Court and found that the lower Court although had mentioned the ap plication 10a/1,10a/2,10a/3, and 10a/12 but it is not mentioned that after the case was restored notice was given to the op posite party, nor it was mentioned that any such notice was personally served upon the opposite party. I agree with the contention of the learned Counsel for the revisionist that, even if the petition was restored, a notice was necessary to be given to the respondents and when such notice was not given or not served, the learned lower Court must have set aside ex- parte, judgment and order and must have allowed his application.