Dwijesh Kumar Pandey vs Judge,Family Court,Gorakhpur & Anr.

Krishna Kumar, J.—Heard learned Counsel for the revisionist, learned Counsel for the opposite parties and learned A.G.A.

This revision has been filed against order dated 26111999 passed by the learned Family Court, Gorakhpur whereby application for setting aside exparte, judgment was rejected.

Learned Counsel for the revisionist contended that the revisionist had filed written statement. Learned lower Court must have held that there was intentional default on the part of the revisionist only then the learned lower Court could proceed expane. I am not convinced with this contention because once the revisionist appeared before the lower Court and filed a written statement, he must be knowing each date fixed in the case. If the revisionist did not appear in the lower Court, it shall be held that it was intentional default. Even if on one day, he could not appear because of some occurrence or some incident, he could appear next date, thereafter, in the Court and could pray that the case be heard on merits or his evidence be recorded. The revisionist did not appear in the lower Court after filing written statement and that was sufficient to prove that he was intentionally avoiding his presence in the Court. Further, in the lower Court this plea was not taken that the revisionist could not appear in the Court because of some unavoidable circumstances. Rather, the plea was taken that a compromise has , taken place and it was agreed that the petitioner shall get the case dismissed and, therefore, he stopped taking part in the proceedings. This assertion was not believed by the learned lower Court. From the order of the learned lower Court, it is also clear that the revisionist filed written statement on 281995 and the case was decided exparte, on 2071998 i.e., after about three years. There was no reason for the revisionist to find out about the case during this period. It may also be staled that the expane, judgment was dated 2071998 while the application was moved on 2481999. The application, therefore, was barred by time. Thus, the learned lower Court committed no illegality in rejecting the said application. There is no force in the revision, which is hereby dismissed.

Revision dismissed.