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2013 DIGILAW 2063 (MAD)

Chitra v. K. Saravanan

2013-06-18

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. This civil revision petition is filed against the order made in I.A.No.222 of 2008 in H.M.O.P. No.93 of 2004 on the file of Principal Sub Court, Villupuram wherein and whereby the application filed by the petitioner herein under Section 5 of the Limitation Act, seeking to condone the delay of 1382 days in filing a petition to set aside the exparte decree of restitution of conjugal rights, was rejected. 2. The petitioner is the wife and the respondent is the husband. It is seen from the materials placed before this Court by both sides that the respondent herein filed H.M.O.P. No.93 of 2004 under Section 9 of the Hindu Marriage Act seeking for a decree of restitution of conjugal rights against the petitioner herein. On 02.02.2005, an exparte decree came to be passed in the said petition. As the petitioner herein did not comply with the decree granted for restitution of conjugal rights, the respondent/husband subsequently filed H.M.O.P. No.45 of 2006, seeking for divorce. The said petition for divorce, after contest, was decreed on 23.12.2008. Before the grant of such decree, the petitioner herein filed I.A.No.222 of 2008 in H.M.O.P.No.93 of 2004 on 14.12.2008 under section 5 of the Limitation Act, seeking to condone the delay of 1382 days in filing the set aside petition. The court below has rejected the said application by observing that no sufficient cause is shown by the petitioner for condoning the delay of 1382 days. Aggrieved against the same, the present civil revision petition is filed. 3. Heard the learned counsel appearing for the petitioner as well as the respondent. 4. Learned counsel appearing for the petitioner contended that the petitioner has not taken steps to set aside the exparte decree passed against the decree for restitution of conjugal rights only on the assurance given by the husband that the same was filed only to intimidate the petitioner and that he would withdraw the same and the petitioner need not worry about such decree passed against her and therefore when such assurance was given by the husband, the court below was not justified in rejecting the application by observing that the petitioner has not given any sufficient cause. Learned counsel also submitted that the court below has not at all discussed the said contention raised by the petitioner. 5. Learned counsel also submitted that the court below has not at all discussed the said contention raised by the petitioner. 5. Per contra, it is the contention of the learned counsel appearing for the respondent that when a decree of restitution of conjugal rights was granted as early as on 02.02.2005, the petitioner neither complied with the decree nor challenged the same or filed any application to set aside the decree immediately. Therefore, taking such non compliance as one of the grounds, the respondent has filed H.M.O.P. No.45 of 2006, seeking for divorce. It is specifically stated in the divorce petition itself about the exparte decree passed on 02.02.2005 in Section 9 application. He also brought to my notice that the petitioner herein has filed counter in H.M.O.P. No.45 of 2006 as early as on 01.11.2006 and at paragraph No.13, it is specifically stated by her that she is taking steps to set aside the exparte order passed in the Section 9 application. Thus, the learned counsel submitted that the petitioner herein had the knowledge about the exparte order passed in the section 9 application as early as on 01.11.2006 itself when she filed a counter affidavit in H.M.O.P. No.45 of 2006. However, without filing any such application immediately, she had chosen to file the same only in the month of December 2008 by contending as if she came to know about the exparte decree only on 22.12.2008, which is not factually correct and a false statement. 6. The facts which are not disputed between the parties are as follows: The respondent herein filed H.M.O.P. No.93 of 2004 under section 9 of the Hindu Marriage Act seeking for restitution of conjugal rights. On 02.02.2005, an exparte decree came to be passed in the said petition. Only to set aside the said exparte decree, the petitioner herein filed the present application in I.A.No.222 of 2008 seeking to condone the delay of 1382 days in filing such set aside petition. It is also admitted by both sides that the respondent has also filed H.M.O.P. No.45 of 2006 seeking for divorce in which a decree, after contest, came to be passed on 22.12.2008. Therefore, what is to be seen is as to whether the petitioner has given sufficient cause for condoning the delay of 1382 days in filing the set aside petition. Therefore, what is to be seen is as to whether the petitioner has given sufficient cause for condoning the delay of 1382 days in filing the set aside petition. It is not disputed that H.M.O.P. No.45 of 2006 came to be filed by the respondent on 05.04.2006 and in which, the petitioner herein also filed the counter as early as on 01.11.2006. A perusal of the petition filed by the respondent in H.M.O.P. No.45 of 2006 at paragraph No.8 would show that he has specifically stated about the exparte decree passed on 02.02.2005 in H.M.O.P. No.93 of 2004, filed for restitution of conjugal rights. To the said petition, the petitioner herein has filed counter, in which she has specifically admitted about the knowledge of the exparte order passed in H.M.O.P.No.93/2004 at paragraph No.13 and however stated that she is taking steps to set aside the same. Even though she filed the counter as early as on 01.11.2006, the fact remains that the petitioner has not taken steps till 14.12.2008 to set aside the exparte order. On the other hand, the petitioner has filed the petition under section 5 of Limitation Act by contending that she had knowledge about the exparte order only on 22.12.2008, which is factually not a correct statement and in fact it goes contrary to her own statement made in the counter affidavit filed in H.M.O.P. No.45 of 2006 as observed above. Therefore, when the petitioner had knowledge as early as on 01.11.2006 itself and having not taken any steps to file the set aside petition immediately, I find that the court below is justified in rejecting the application as the petitioner has not given sufficient cause. The petitioner's contention that the husband had given assurance for not executing the decree of conjugal rights and therefore she did not take steps to file set aside petition immediately cannot be accepted as a true statement since she did not make such averment in her counter filed in divorce petition. At any event, even assuming such statement is true, the fact remains that the petitioner did not file such application atleast immediately after filing the said counter. 7. No doubt, it is not necessary that each and every delay has to be explained. At any event, even assuming such statement is true, the fact remains that the petitioner did not file such application atleast immediately after filing the said counter. 7. No doubt, it is not necessary that each and every delay has to be explained. But at the same time, when the delay is enormous, it is for the petitioner to show sufficient cause by acceptable material evidence and prove the same. When her own counter filed as early as on 01.11.2006 goes contrary to her statement made in the present petition, the court below has rightly rejected by the application by exercising its discretionary power. Since the delay is enormous and it is also proved by the other side that the petitioner had knowledge about the exparte order as early as in the month of November 2006 itself, I find that the order passed by the court below does not warrant any interference. Accordingly, the civil revision petition is liable to be dismissed. 8. Learned counsel appearing for the petitioner however submitted that the dismissal of the civil revision petition should not influence the mind of the Appellate Court where she has filed appeal against the decree of divorce. 9. Needless to say that this Court has considered only the order made in Section 5 application and the reasons stated therein. However, any observations made in this order shall not influence the mind of the Appellate Court while deciding the appeal filed against the divorce. With this observation, the civil revision petition is dismissed. No costs.