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2014 DIGILAW 123 (MAD)

N. Kanchana v. A. K. K. Govindarajan

2014-01-20

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. Notice before admission was given and the respondent is also before this Court represented by a learned counsel. Since in the present revision, the order condoning the delay of 697 days in filing the application under Order 9, Rule 9 of C.P.C. to restore the H.M.O.P. filed by the respondent herein which had been dismissed for default on 09.01.2009 is under challenge, the learned counsel appearing for both parties submit that the issue involved in the Civil Revision Petition can be finally disposed of even without calling for the records of the lower Court. This Court is also of the view that summoning of the records of the lower Court is not necessary for the disposal of the Civil Revision Petition. Hence, the arguments advanced by Mr.J.Harikrishna, learned counsel for the petitioner and by Mr.Avinesh Wadhwani, appearing on behalf of the learned counsel for the respondent are heard. The materials produced in the form of typeset of papers are also perused. 2. The facts leading to the filing of present Civil Revision Petition are as follows:- [a] The revision petitioner is the wife of the respondent herein. Both are Hindus and their marriage took place on 27.10.2006 in accordance with the provisions of the Hindu Marriage Act. Subsequently, they got separated as a result of which, the respondent herein [husband] filed H.M.O.P.No.6 of 2008 on the file of the learned Subordinate Judge, Gudiyatham, for dissolution of marriage under Section 13(1)(a) (ib) of the Hindu Marriage Act, 1955, on the ground of desertion and cruelty. When the case stood listed on 09.01.2009 for the appearance of the parties, the respondent herein [husband] failed to appear and his failureled to the dismissal of the above said H.M.O.P. for default on 09.01.2009. Within the time allowed by law, the respondent did not file any application under Order 9, Rule 9 of C.P.C. for the restoration of the H.M.O.P., which had been dismissed for default on 09.01.2009. Within the time allowed by law, the respondent did not file any application under Order 9, Rule 9 of C.P.C. for the restoration of the H.M.O.P., which had been dismissed for default on 09.01.2009. However belatedly, after a lapse of more than 700 days from the date of dismissal of the H.M.O.P., he chose to file an application under Order 9, Rule 9 of C.P.C. for the restoration of the H.M.O.P. As the said application was not filed in time, it was accompanied by another application viz., I.A.No.6 of 2011 filed under Section 5 of the Limitation Act, for condoning the delay of 697 days in filing the application to restore the H.M.O.P., which had been dismissed for default. [b] The respondent in his affidavit filed in support of the said application stated that due to ill health, he could not appear before the trial Court on 09.01.2009 leading to the dismissal of the H.M.O.P. for default and that thereafter, he was suffering from viral fever for six months. Without assigning any other reason, he had sought for an order condoning the delay of 697 days in filing the restoration application. The same was resisted by the revision petitioner [wife] contending that after the filing of the H.M.O.P., elders and panchayathdars mediated, which resulted in a compromise; that pursuant to the compromise, the respondent herein promised to withdraw the H.M.O.P. on the eve of their reunion and that only pursuant to the compromise, the respondent herein instead of withdrawing the H.M.O.P., allowed the same to be dismissed for default. She had made further averments which if strictly construed may not be germane for a decision to be rendered in the application filed under Section 5 of the Limitation Act. Those averments are pertaining to the ill-treatment and desertion allegedly made by the respondent herein [husband] including harassment which resulted in miscarriage while she was 3 ½ months pregnant. She had made further averments which if strictly construed may not be germane for a decision to be rendered in the application filed under Section 5 of the Limitation Act. Those averments are pertaining to the ill-treatment and desertion allegedly made by the respondent herein [husband] including harassment which resulted in miscarriage while she was 3 ½ months pregnant. [c] The learned trial Judge, after hearing both sides, chose to accept the contention made by the respondent herein pointing out the fact that the petitioner herein had not produced any proof of the averments made in her counter, allowed the application in I.A.No.6 of 2011 and condoned the delay of 697 days in filing the application to restore the H.M.O.P., which had been dismissed for default on condition that the respondent herein should pay the revision petitioner a sum of Rs.700/- as costs. Aggrieved by and impugning the said order of the learned trial Judge, the revision petitioner [wife] has knocked at the doors of this Court by preferring the revision under Section 115 of the Code of Civil Procedure on various grounds. 3. The main contention of the learned counsel for the revision petitioner is that without even considering the question on whom the burden of proof lies in an application filed under Section 5 of the Limitation Act, the learned trial Judge has chosen to make an observation finding fault with the revision petitioner herein that she had not produced any evidence in proof of the alleged reunion, promise to withdraw the H.M.O.P. and the subsequent ill-treatment and desertion on the part of the respondent herein, his sister and his mother. According to the submissions made by the learned counsel for the revision petitioner, the said approach made by the learned trial Judge is totally erroneous because even in the absence of any evidence in proof of the contentions raised in the counter statement, the initial burden cast on the respondent herein, who was the petitioner before the trial Court, would not get discharged or shifted on the revision petitioner in the absence of any evidence adduced on his side in proof of the averments made in the supporting affidavit. It is also the contention of the learned counsel for the revision petitioner that a mere reading of the supporting affidavit and consideration of the reasons stated therein will make it clear that he has not come forward with any acceptable explanation as to why he had allowed the passage of more than 700 days from the date of dismissal of the H.M.O.P. before he approached the trial Court with an application to restore the H.M.O.P. along with the application to condone the delay in filing such an application. 4. On the other hand, Mr. Avinesh Wadhwani, learned counsel for the respondent would submit that when the revision petitioner had come forward with specific averments as to what happened prior to the dismissal of the H.M.O.P. for default and what happened to her subsequent to the alleged reunion, the burden of proving the same very much lies on the revision petitioner and that the learned trial Judge committed no mistake in holding that there was failure on the part of the revision petitioner herein to prove her averments including the one that there was reunion, as a result of which alone, the respondent herein allowed the H.M.O.P. to be dismissed for default and that the same would probablise the averments made by the revision petitioner in the supporting affidavit providing explanation for the delay in filing the restoration application. 5. This Court, after paying its attention to the above said contentions made by the learned counsel appearing on both sides, is of the considered view that the contentions raised by the learned counsel for the respondent cannot be sustained and on the other hand, the contentions raised by the learned counsel for the revision petitioner cannot be rejected as untenable. As rightly contended by the learned counsel for the revision petitioner, the initial burden of explaining the delay in filing the application to restore the H.M.O.P., which had been dismissed for default, lies on the husband [respondent herein] and the said burden shall not stand shifted or stand discharged simply because the revision petitioner has stated reunion and the subsequent events as the reason for the delay. Even assuming that the reunion and the subsequent events alleged by the revision petitioner herein are not proved, the same will not cause automatic acceptance of the reasons assigned by the respondent herein for the inordinate delay in filing the application for the restoration of the H.M.O.P. that had been dismissed for default. Each and every day's delay has got to be explained by the respondent herein by assigning valid reasons to make the Court come to a conclusion that he was prevented by a reasonable cause from approaching the Court for the restoration of the H.M.O.P. in time. In this case, the respondent herein, who allowed the H.M.O.P. filed by him to be dismissed for default on 09.01.2009, chose to file the applications under Order 9, Rule 9 of C.P.C. and under Section 5 of the Limitation Act only on 08.04.2011. The reasons assigned by the respondent herein are: (1) He was suffering from ill-health on the date of hearing of H.M.O.P. which led to the dismissal of the H.M.O.P. for default on 09.01.2009 and (2) He was suffering from viral fever and was bedridden for six months prior to the filing of the applications. 6. The exact averment made in the affidavit is as follows:- "I further state that I was suffering from viral fever for the past six months and bedridden. So, I was not able to contact the counsel and file the petition to restore the case in time". 7. The said averment is intended to mean that he was bedridden with viral fever for six months prior to the filing of the applications. If that is so, the same will not provide a valid explanation for the failure on the part of the respondent to file the application for restoration for more than 500 days from the date of dismissal of the H.M.O.P. The 500 days delay from the date of dismissal of the H.M.O.P. stands unexplained. If the said averment is intended to mean that soon after the dismissal of the H.M.O.P. for default he was bedridden for six months, then the later part of the delay accounting for more than 500 days will not stand unexplained. When the major part of the delay has not been explained with acceptable reasons, the corollary shall be the averment made by the revision petitioner regarding reunion will be probable. When the major part of the delay has not been explained with acceptable reasons, the corollary shall be the averment made by the revision petitioner regarding reunion will be probable. The learned trial Judge, without approaching the problem in proper perspective has erroneously cast the burden on the respondent to prove the absence of reasonable cause and decided the application in favour of the respondent herein. Such an erroneous approach made by the learned trial Judge has resulted in an erroneous and unsustainable order condoning the inordinate delay in filing the application for restoration, of course subject to a condition regarding payment of costs. The said order will not stand the scrutiny of this Court. Viewed from any angle, the order of the learned trial Judge, dated 08.09.2011 made in I.A.No.6 of 2011 cannot be sustained and on the other hand, the same deserves to be set aside with the result that the application filed under Section 5 of the Limitation Act by the respondent herein shall stand dismissed. 8. In the result, the revision succeeds. The order of the learned trial Judge made in I.A.No.6 of 2011 in H.M.O.P.No.6 of 2008 is set aside. I.A.No.6 of 2011 shall stand dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.