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2014 DIGILAW 313 (CHH)

Suresh Sharma v. Sangita Sharma

2014-08-19

SANJAY K.AGARWAL

body2014
ORDER 1. This revision is directed against the order dated 08.09.2009 passed by Family Court, Raipur in Case No. 19 of 2009, by which, the applicant/husbands application for setting aside ex-parte order of maintenance has been rejected by the Family Court finding no sufficient cause has been shown by the applicant within the meaning of Section 5 of the Indian Limitation Act, 1963 (henceforth the Act, 1963). 2. The core facts necessary for disposal of this revision are as under:- 2.1 On, an application filed by the non-applicant/wife under Section 125 of the Code of Criminal Procedure (for short the Code) claiming monthly allowance for maintenance stating inter alia that she is legally wedded wife of applicant; she is forced to live separately on account of cruelty extended by the applicant/husband and she is unable to maintain herself having no independent source of income. 2.2 The Family Court issued notice to the applicant, which was duly served to him but he failed to appear before the said Court leading to passing of the ex parte order of maintenance on 30.09.2008. 2.3 The present applicant on 22.1.2009 filed an application under Order 9, Rule 13 of Code of Civil Procedure (for short the CPC) read with Section 151, CPC an also filed application under Section 5 of the Indian Limitation Act stating inter alia that he was seriously ill and admitted in the hospital for about one month and, therefore, he could not prefer the appeal within the time prescribed under proviso to sub-section (2) of Section 126 of the Code. 2.4 The Family Court, by its impugned order dated 08.09.2009, rejected the application finding inter alia that there is delay of three months in filing the application and the applicant could not properly explain the inordinate delay of three months in filing the same. Against this order, the instant revision has been filed by the applicant/husband. 3. Shri Pankaj Agrawal, learned counsel appearing for the applicant would submit that though the application under Order 9, Rule 13 read with Section 151 of CPC was filed by the applicant, but the substantive provision for setting aside ex parte order is under proviso to sub-section (2) of Section 126 of the Code. 3. Shri Pankaj Agrawal, learned counsel appearing for the applicant would submit that though the application under Order 9, Rule 13 read with Section 151 of CPC was filed by the applicant, but the substantive provision for setting aside ex parte order is under proviso to sub-section (2) of Section 126 of the Code. He would further submit that ex parte order of maintenance was passed on 30.09.2008 and the application for setting aside ex parte order of maintenance was filed on 22.01.2009, thus, there is delay of 22 days only, for which proper reason has been assigned that he was medically unfit and under treatment, therefore, impugned order be set aside and the Family Court be directed to hear and dispose of the main application filed under Section 125 of the Code on merits. 4. Smt. Meena Shastri, learned counsel appearing for the non-applicant would submit that the present revision as framed and filed is not maintainable as the remedy of the applicant is to file miscellaneous appeal under Order 43, Rule 1(c) of Code of Civil Procedure. Alternatively, she would further submit that no sufficient cause has been shown by the applicant for delay in filing the application for setting aside ex parte order of maintenance. 5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein including order impugned with utmost circumspection. 6. An ex parte order of maintenance was passed by the Family Court on 30.9.2008 on an application filed by the non-applicant/wife under Section 125 of the Code. If the ex-parte order of maintenance was passed by the Family Court, remedy of the aggrieved person is to file an application under proviso to sub-section (2) of Section 126 of the Code. Thus, if the aggrieved party had filed an application under Order 9, Rule 13 of Code of Civil Procedure (for short the CPC) read with Section 151, CPC alongwith application under Section 5 of the Indian Limitation Act, though the applicant is required to file application under proviso to sub-section (2) of Section 126 of the Code, the said Court is not denuded of its authority to exercise the power to set aside the ex parte order of maintenance, which he had under proviso to sub-section (2) of Section 126 of the Code. 7. 7. In Nagappa vs. Y.R. Maralidhar, AIR 2008 SC 2010 , their Lordships of Supreme Court has held as under:- "11. It is now a well settled principle of law that non mentioning or wrong mentioning of provision of law would not be any relevance, if the court had the requisite jurisdiction to pass an order." 8. Accordingly, it is held that the said application, in substance, would be treated as an application filed under proviso to sub-section (2) of the Section 126 of the Code. (9) In order to appreciate the point raised, it would be profitable to notice proviso to Section 126(2) of the Code, which reads as under:- "126. Procedure - (1) Proceedings under Section 125 may be taken against any person in any district. (2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper." 10. From a careful and close perusal of the proviso to sub-section (2) of Section 126 of the Cr. P.C. would show that the ex-parte order can be set aside on showing good cause by the applicant, if such application is made within three months from the date of the order. 11. Thus, in the instant case, impugned ex-parte order of maintenance was passed on 30.09.2008 whereas application for setting aside the said ex-parte order of maintenance was filed on 22.01.2009. 12. What falls for consideration in this revision is whether sufficient cause has been shown for the delay of 22 days in filing the application for setting aside ex-parte order of maintenance. 13. 12. What falls for consideration in this revision is whether sufficient cause has been shown for the delay of 22 days in filing the application for setting aside ex-parte order of maintenance. 13. Applicant has led his evidence to this effect that he was medically treated in the Bhrigu Nursing Home, Bhatapara for one month i.e. 3.9.2009 to 1.10.2009. 14. Considering the fact that there is delay of only 22 days in filing the application for setting aside ex parte order of maintenance but fact remains that the applicant has properly explained the delay in filing the said application saying that he was medically unfit and has been treated in Bhrigu Nursing Home, Bhatapara for one month. 15. It is trite law that the approach of court should be liberal while dealing with application for condonation of delay. 16. The Supreme Court in case of N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123 : AIR 1998 SC 3222 , paras 11 to 13, has held in paras 13 to 15 as under : "13. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the remedy wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential Anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 14. A court knows that refusal of condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 14. A court knows that refusal of condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words sufficient cause under Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice vide Shankuntala Devi Jain vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal vs. The Administrator, Howrah Municipality, AIR 1972 SC 749 . 15. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." 17. Taking into consideration the fact that applicant was seriously ill and he was hospitalized in the Bhrigu Nursing Home, Bhatapara for a fairly long time and considering the principles laid down by their Lordships of Supreme Court in the above referred case, this Court is of the opinion, that the applicant has succeeded in showing the sufficient cause for delay of 22 days in filing the applicant for setting aside the order of maintenance within the meaning of Section 5 of the Indian Limitation Act, 1963 and the same is hereby condoned. 18. 18. Now coming to the objection raised by Smt. Shastri, learned counsel for the non-applicant that this revision is not maintainable, the same is deserves to be rejected as it has already been held that mere quoting of wrong provision in the substantive application filed for setting aside ex parte order of maintenance, the Family Court would not cease to have jurisdiction to exercise power under proviso to sub-section (2) of Section 126 of the Code to set aside the ex parte order of maintenance; therefore, against the order rejecting application for setting aside ex parte order, revision under Section 397/401 of the Code of Criminal Procedure would be maintainable and it has rightly been filed. The objection so raised, it is hereby rejected. 19. Concludingly, the criminal revision is allowed. Impugned order dated 8.9.2009 is set aside. The said application is restored to the file of Family Court, Raipur in its original number for hearing and disposal in accordance with law on merits. The said Court is directed to decide the said proceedings within six months from the date of receipt of copy of this order. 20. However, in the ends of justice, it is directed the applicant shall regularly pay the amount of maintenance of Rs. 1,500/- per month to the non-applicant till the application for setting aside ex-parte order is finally decided. 21. No order as to costs. Petition allowed.