A Court has the power to restore a dismissed petition by exercise of its ancillary and incidental powers, even though there is no specific provision in the Code.

PASAYAT, J.

( 1 ) IN this appeal under Section 19 of the Family Courts Act, 1984 (in short, the 'act'), order of learned Judge, Family Court, Cuttack rejecting an application for restoration of petition under Section 125 of the Code of Criminal Procedure, 1973 (in short, the 'code') is assailed.

( 2 ) A brief reference to the factual aspects is necessary for disposal of the appeal which involves a ticklish question of law, fact situation as described by the appellant runs as follows :the appellant filed an application under Section 125 of the Code claiming maintenance on the ground that she is the legally married wife of respondent who has sufficient means to maintain her, she is unable to maintain her, the respondent has neglected and refused to maintain her and she is not disqualified under any of the provisions enumerated in Section 125 of the Code. There appears to be long drawn series of litigations between parties, with which we are not presently concerned. On 26-11-1990 appellant filed an application under Section 125 of the Code before learned Sub-Divisional Judicial Magistrate, Sadar, Cuttack. Subsequently it was transferred to the family Court on 30-3-1991, and interim maintenance was allowed by the said Court on being moved by the appellant. Against the said order, respondent preferred Civil Revision No. 555 of 1991 in this Court. After hearing the parties, this Court was pleased to remand the matter to the Family Court for fresh adjudication. Learned Judge, Family Court directed payment of Rs. 200/- per month as interim maintenance from the date of application. The matter was posted to 4-11-1991 for payment of arrears maintenance and hearing. On that day, appellant could not attend the Court as she had gone to Puri earlier for religious ceremonies. She also could not intimate her counsel regarding her absence, as she had left on 29-10-1991. The case was dismissed for default on the ground of non-appearance of the applicant. A memorandum had been filed on that date that arrear maintenance as directed had not been paid. An application was filed for restoration of the case. Though the same was styled as under Section 126 (2) of the Code, it is accepted that the petition was really for restoration and provisions of Section 126 (2) of the Code have no application to the case.

( 3 ) THE application was resisted by respondent on the ground that reasons indicated for non-appearance are not factually correct. Learned Judge, Family Court rejected the application though he held that he had power to restore the petition by exercise of inherent powers. Reliance was placed for such view on a decision of this Court in Rekha Jena v. Manoranjan Jena, ILR 1963 Cuttack 556. Learned counsel for appellant in support of appeal has submitted that the approach of learned Judge, Family Court is erroneous, Considering the fact that appellant has been ventilating her grievance since about two decades, the inference that there was no justifiable reason for her absence or that she was not vigilant is not tenable in law. Learned counsel for respondent however, submitted that learned Judge, Family Court had no power of restoration and he was not correct in his conclusion that he had power to restore. It is, however, submitted that rejection has been rightly done.

( 4 ) WE shall first deal with the contention relating to the power of learned Judge, Family Court to restore an application under Section 125 of the Code, which has been dismissed for default. As indicated above, learned Judge, Family Court held that he had power to do so relying on the decision in Rekha Juna's case (supra ). In that decision conclusion was to the effect that though there is no provision similar to Order 9 of the Code of Civil Procedure, 1908 (in short, the 'cpc'), yet principles embodied therein are applicable and the Court has inherent jurisdiction to remedy wrong under certain circumstances. It was held that there is no provision to deal with the case of default