- (1.) V. D. Chaturvedi, J. This criminal revision has been filed against the order dated 23-9-2002 (passed in Misc. Case No. 39 of 2000) whereby the learned Judge, Family Court, Gorakhpur rejected the revisionist's application to set aside the ex parte judgment (dated 12-10-2001) passed in Case No. 146 of 1999, Smt. Anita v. Satya Narain Gaur.
(2.) THE relevant facts are briefly that respondent No. 2 Smt. Anita filed a petition under Section 125 Cr. P. C. for maintenance allowance against her husband Satya Narain Gaur (revisionist ). THE notices in these proceedings were sent to the revisionist which came back with the endorsement that he had gone in his relationship. THE registered notices were sent again but those were never received back. Hence an order dated 20-4-2001, to proceed ex parte, was passed and the case proceeded ex parte. After the arguments were over, the revisionist appeared and moved an application to set aside the order dated 20-4-2001 which was allowed on costs. THE revisionist thereafter did not appear in Court hence the ex parte judgment was passed on 12-10-2001 awarding the maintenance allowance at the rate of Rs. 500/- per month in favour of Smt. Anita Devi and the maintenance allowance at the rate of Rs. 150/- per month to each of her two children. Thus the total amount awarded was Rs. 800/- per month. The revisionist moved an application dated 17-7-2002 supported by an affidavit, to set aside the ex parte judgment dated 12-10-2001 pleading that due to the efforts made by the relatives of both parties a compromise was arrived at between him (revisionist) and his wife, and resultantly both started living together from 16-9-2001; that the father of Smt. Anita Devi, (respondent No. 2) assured him that he would not contest the case of Smt. Anita Devi and would get the same dismissed; that relying upon such assurance, the revisionist did not attend the Court and left for Delhi to earn his livelihood; that after a lapse of time the revisionist's father gave a telephonic message to the revisionist that the police reached his house and that Smt. Anita Devi had also left the revisionist's house. The revisionist, therefore, came back to his native village on 13-7-2002 and reached the Court on 15-7-2002 and 16-7-2002 and on inspection of the record he came to know regarding the ex parte judgment dated 12-10-2001. The revisionist's petition dated 17-7-2002 for setting aside the ex parte judgment was dismissed on 23-9-2002 on the ground (i) that the revisionist had once put in his appearance in the case earlier and thereafter willfully absented himself and (ii) that the restoration petition was moved nine months after the date of ex parte judgment and thus the restoration petition was barred by time.
(3.) I have heard Sri K. K. Mani, for the revisionist and Sri R. K. Chaubey and the learned A. G. A. for the respondents and have also gone through the record of the case. The plea of the revisionist that he and his wife started living together from 16-9-2001 and that the father of his wife assured that he would get the case dismissed is, however, controverted by respondent No. 2 in her objection filed in Court below, but the probability of the revisionist's plea being true cannot be ruled out. One of the norms of the judicial system is that "it is not enough that justice has been done but it must also appear to others that justice is being done". In order to achieve the aim of the second part of the said maxim it is essential that the orders and judgments be passed after giving adequate opportunity to both the parties. While dealing with the restoration application the out look of the Courts must be broad and liberal but only to the extent that the party in default may not take the undue advantage of his deliberate default. The plea taken by the revisionist is convincing, hence it is appropriate ground for setting aside the ex parte judgment.;