S.C. Agarwal, J. - (1.) THIS revision under Section 397/401 Code of Criminal Procedure is directed against the order dated 5.11.2009 passed by the Principal Judge, Family Court, Bareilly in Criminal Case No. 961 of 2009, Deepak Jaiswal v. Anchal Sexena whereby the application for condonation of delay under Section 5 of the Limitation Act in moving an application under Section 126(2) Code of Criminal Procedure was rejected.
(2.) IN brief, the admitted facts are that opposite party No. 2 Smt. Anchal Saxena claiming herself to be the wife of the revisionist -Deepak Jaiswal filed an application under Section 125 Code of Criminal Procedure on her behalf and on behalf of her minor daughter Akansha on 13.11.2003 against the revisionist in the Family Court, Bareilly, which was registered as Case Crime No. 1463 of 2003. The revisionist filed written statement but subsequently, absented and the application under Section 125 Code of Criminal Procedure was allowed vide Judgment and order dated 16.8.2005 and the revisionist was directed to pay maintenance allowance to his wife and minor daughter @ Rs. 4000/ - per month and 2000/ - per month respectively. Feeling aggrieved, the revisionist filed a Criminal Revision No. 4308 of 2005, Deepak Jaiswal v. State of U.P. and Anr. in the High Court, which was ultimately dismissed on 27.5.2009 by this Court as not pressed on the ground that the revisionist would press his application under Section 126 Code of Criminal Procedure before the court concerned. In the meantime, an application under Section 126(2) Code of Criminal Procedure for setting aside ex -parte judgment and order dated 16.8.2005 alongwith an application under Section 5 of the Limitation Act was moved before the Principal Judge, Family Court, Bareilly. Opposite party No. 2 filed objections. Learned Principal Judge, Family Court, Bareilly, vide order dated 5.11.2009 rejected the application under Section 5 of the Limitation Act on the ground that opposite party No. 2 was fully aware of the proceeding. The application was moved on the ground that he was suffering from illness and was busy in business out of the city and could not enquire about the case from his counsel. The application was dismissed on the ground that the revisionist had full knowledge about the case. He challenged the ex -parte order dated 16.8.2005 in the High Court by means of Criminal Revision No. 4308 of 2005 but till the year 2009, he did not move any application under Section 126 Code of Criminal Procedure for setting aside ex -parte order, though he had knowledge about the judgment in the year 2005 itself. It was also found that the revisionist has not given any details about his illness or remaining busy in business out of the city. Consequently, application under Section 5 of the Limitation Act was dismissed. The aforesaid order is under challenge in this revision.
(3.) I have heard Sri Shailesh Pandey, learned Counsel for the revisionist, learned AGA and Sri Sunil Kumar Srivastava, learned Counsel for opposite party No. 2.;