Court No. - 2
Case :- APPLICATION U/S 482 No. - 22509 of 2019 Applicant :- Mushir Miyan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rewti Raman Patel Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Rewti Raman Patel, learned counsel for the applicant and Sri Vimal Kumar Pandey, learned A.G.A. for the State.
The present application u/s 482 Cr.P.C. has been filed with a prayer to recall the order dated 29.5.2019 passed by Principal Judge, Family Court in Case No. 964 of 2017, under Section 125 Cr.P.C., P.S. Civil Lines, Alighar and further to allow the application 11 Kha of the applicant.
It has been argued by the learned counsel for the applicant that the order dated 29.5.2018 needs to be recalled because he had moved an application 11 Kha before the trial court for getting ex-parte order set aside. The trial court has recorded in impugned order dated 29.5.2019 that under Section 126(2) Cr.P.C., three months time has been granted for recalling the ex-parte order provided sufficient reasons have been shown and beyond that the application under Section 5 of Limitation Act ought to have been moved by applicant, which was not moved and accordingly, the order to proceed ex-parte was not set-aside. Further the impugned order shows that the applicant did not show any specific date as to since when till when he was sick nor did he submit any medical certificate to prove his illness and, therefore, on that count also he did not find its appropriate to set aside the ex-parte order.
Learned A.G.A. opposed the prayer of recall application.
Looking to the fact, I find that the trial court has yet to decide the application under Section 125 Cr.P.C., hence it would be appropriate if the applicant is given one opportunity to file objection and also adduce evidence in support there of and thereafter only the trial court should decide the matter on merits. Therefore, I direct the trial court to permit the accused applicant to file objection against the application under Section 125 Cr.P.C. within one month condoning the delay and thereafter decide the matter on merits.
Accordingly, this application is disposed of with the aforesaid direction.
A copy of this order be placed before the trial court by the applicant for compliance forthwith.
Order Date :- 10.6.2019 A.P. Pandey