D.N.PRASAD, J. - (1.) THIS is an application under Section 482 of the Code of Criminal Procedure for quashing the order dated 8.12.1998 passed by the Judicial Magistrate, 1st Class, Bermo at Tenughat in Maintenance Case No. 4 of 1995 corresponding to Misc. Case No. 11 of 1998 whereby an ex parte order was passed for payment of maintenance under Section 125, Cr. P.C. against which a revision application was also filed which was dismissed by an order dated 10.1.2002 on the ground of delay in filing the revision application.
(2.) LEARNED Counsel for the petitioner, at the very outset, submitted that the petitioner has not received any summons as regards to the institution of the maintenance case against the opposite party No. 2 as the name of the petitioner has wrongly been written in the cause title of the application itself and there is nothing to show that registered cover was ever served to the petitioner and in absence of the petitioner, the learned Magistrate passed the order allowing the maintenance ex parte. It is further argued that against the order of the learned Magistrate, the petitioner preferred revision, though thereafter there was some delay in filing the revision application but the learned Revisional Court also dismissed the revision application without giving any opportunity to the petitioner to contest the case when the petitioner is challenging the marriage. From perusal of the application filed under Section 125, Cr. P.C, it is apparent that there is a mistake in writing the name of the petitioner over the cause title which was written as Raiyasad Ansari whereas the petitioner's name is Irshad Ansari which may be the cause for non -service of the notice/summons against the petitioner. Admittedly the petitioner could not appear in the case at the initial stage before the Trial Court and the Magistrate passed the order ex parte. However, as soon as the petitioner came to know about the case, he preferred a revision application and prayed for giving opportunity to contest but that revision application was also dismissed on the ground of limitation. It is true that the said revision application was filed after expiry of one year and 5 months but the petitioner was ready to contest the case of maintenance. In such circumstance the Court below ought to have given an opportunity to the petitioner to contest the case so that the matter would have been thrashed out once and finally. Apparently, there is nothing to show that the petitioner has ever received any summons notice.
(3.) IN such circumstance, in my view the petitioner should be given one chance to appear and contest the case. Thus I find merit in the application which is allowed. Consequently the order dated 8.12.1998 along with the order dated 10.1.2002 of the Revisional Court is hereby, quashed. The petitioner is directed to appear in the Court below within 15 days from the date of receipt/production of this order. The Court below will try to dispose of the case immediately thereafter after hearing both sides.;