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2018 DIGILAW 859 (ORI)

Aditi Das v. Seshadev Das

2018-12-20

A.K.MISHRA, S.K.MISHRA

body2018
JUDGMENT 1. Heard learned Counsel for the appellant and the learned Counsel for the respondent-opposite party. 2. This is an application under section 5 of the Limitation Act, 1963 to condone a delay of 2 years, 2 months and five days in preferring the MATA against the judgment and exparte decree passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No.2897/2009, as per the order dated 27.03.2015. 3. The impugned judgment was passed on 27.03.2015 and accordingly the appeal should have been preferred within 90 days but the same is filed after a delay of 2 years, 2 months and 5 days. The reason for delay is stated to be due to the fact that the respondent all through was assuring the appellant that he would make provision for the children both financially and otherwise. As the petitioner did not have sufficient means to maintain herself and the children, she could not pursue the matter. When the opposite party stopped paying the amount as ordered by the learned Magistrate in the domestic violence case, the petitioner moved for execution of the order and there was also assurance from the side of the opposite party regarding reunion and to show his bona fide, the opposite party maintained the daughter from her10lh standard till completion of +2 examination from DPS, Damanjodi. It is stated by the petitioner that being swayed away with the assurance of the opposite party, the petitioner did not pursue the legal proceedings. Due to her ill luck, the opposite party neglected the appellant and the children and even neither paid the monthly maintenance nor took care of the children. Having no recourse, considering the future of the children and her day-to-day expenses, the petitioner constrained to enter into legal profession at a belated stage for her survival and maintenance of the children. When she tried to pursue with the execution case for realization of the maintenance amount passed in the PWDV Act, to her utter surprise, the opposite party disclosed about passing of decree of divorce in his favour. Thereafter, when the petitioner made enquiry, she came to know that the opposite party was able to snatch away an ex-parte decree against her for dissolution of marriage in the aforesaid civil proceeding behind her back by perpetrating fraud on her. Thereafter, when the petitioner made enquiry, she came to know that the opposite party was able to snatch away an ex-parte decree against her for dissolution of marriage in the aforesaid civil proceeding behind her back by perpetrating fraud on her. Thereafter, the appellant obtained certified copy of the ex-parte I decree and confronted the matter to the opposite party, who again assured to provide her adequate maintenance and to bear all the expenses of the children and requested the appellant not to proceed further in the matter. In the meantime, the opposite party was arrested in connection with vigilance case and was in custody for 25 days. The opposite party gave assurance that he would make amicable settlement of the dispute and would provide adequate maintenance to the appellant and the children, j Because of that she did not pursue the matter to file appeal, she bestowed her effort to get the opposite party released from the jail. However, after the opposite party was released from the jail instead of fulfilling his commitment, he started to play hide and seek with the petitioner. Finally, when the opposite party turned down his request to pay a single pie either towards maintenance or education of the children, the petitioner decided to file the present appeal. The petitioner is facing immense difficulty in maintaining herself and the children with her scanty income from legal profession. The petitioner is completely dependent upon her old parents for survival. She was earnestly pursuing the matter and in the circumstances, which are beyond her control, there has been delay in filing the appeal which was neither deliberate nor intentional. It is further submitted that it is expedient and in the interest of justice and equity that delay should be condoned. The petitioner submits that she has a good prima facie case and balance of convenience lies in her favour and there is every possibility of success in the appeal. 4. A detail counter has been filed by the opposite party. He claims that the petitioner was well aware of the said order dated 27.03,2015 and preferred to challenge the same by filing MATA after 2 years 2 month and 5 days with ulterior motive and malafide intention to exploit the opposite party. 4. A detail counter has been filed by the opposite party. He claims that the petitioner was well aware of the said order dated 27.03,2015 and preferred to challenge the same by filing MATA after 2 years 2 month and 5 days with ulterior motive and malafide intention to exploit the opposite party. The petitioner has not assigned any cogent and just cause to condone the delay and each day of delay has not been explained with supported evidence, for which the application is liable to be dismissed. The opposite party further claims that the petitioner is an Advocate and busy practitioner and cannot be believed to have no knowledge about the civil proceeding. On receipt of the notice from the Family Court, the petitioner had entered appearance but she did not prefer to contest the case for which she was set ex-parte. Once again, she moved the court below to get the exparte order set aside which was allowed on contest. But, again she defaulted to contest the proceeding. For such intentional abstention, the petition under section 13 of the Hindu Marriage Act was allowed on 27.03.2015 after lapse of long six years of its filing. It is also averred that the appellant was regularly attending the Family Court for her other matters as a practitioner. After a year i.e. 22.3.2016, she applied for the certified copy of the impugned order which she received on 06.04.2016 but did not challenge the same for more than one year. Subsequently on 01.09.2017 i.e. after about 1 Vi years, after obtaining certified copy she has filed the aforesaid MATA with a petition under Section 5 of the Limitation Act to condone the delay. The opposite party further states that the settled principle of law is each day of delay must be satisfactorily explained with documentary evidence but the petitioner has not given sufficient reasons for such inordinate delay in filing the MATA. It is submitted by the opposite party that the petitioner has taken a ground that opposite party was neglecting her and did not pay maintenance in compliance with the order passed in the D.V. proceeding, which is false and baseless. Rather, the opposite party has been paying the maintenance regularly. It is submitted by the opposite party that the petitioner has taken a ground that opposite party was neglecting her and did not pay maintenance in compliance with the order passed in the D.V. proceeding, which is false and baseless. Rather, the opposite party has been paying the maintenance regularly. As far as the contention of the petitioner that assurance was given by the opposite party-husband for re-union, it is stated that he has never given any such assurance to the present appellant, rather the petitioner has left no stone unturned to harass the opposite party. Even in the year, 2016, due to some unavoidable circumstances, the opposite party could not pay the compensation to the appellant for which non-bailable warrant was issued against the opposite party. Then, the petitioner approached the Superintendent of Police, Boudh personally to execute the warrant. As the opposite party was posted at Boudh, it is mentioned that she met the Commissioner to put him under suspension. However, the opposite party admits that he has got his daughter admitted for +2 examination in D.P.S., Damanjodi under the guidance of his own sister. In that view of the matter, it is submitted that the appeal should be dismissed. 5. Mr. Sadangi, learned Counsel for the petitioner argued that the fact of the opposite party giving assurance at belated stage for reunion as well as the maintenance is sufficient cause for not preferring the appeal in time Mr. Pradhan, learned Counsel for the opposite party, on the other hand, submits that it is not a sufficient cause for not preferring appeal. In this connection, he cited several judgments in which delay has been condoned and the same is liable to be discussed later. 6. section 5 of the Limitation Act, 1963 provides for extension of prescribed period in certain cases and is extracted below : "5. In this connection, he cited several judgments in which delay has been condoned and the same is liable to be discussed later. 6. section 5 of the Limitation Act, 1963 provides for extension of prescribed period in certain cases and is extracted below : "5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." A plain reading of the aforesaid provision leaves no doubt in the mind of the Court that the Court has to determine on consideration of the various aspects of the case as to whether there is sufficient cause for not preferring appeal in time. The Hon'ble Supreme Court in the case of "Collector, Land Acquisition, Anantnag and another, Appellants v. Mst. Katiji and others, respondents, AIR 1987 SC 1353 , while laying down certain principles, has observed that it is common knowledge that the Supreme Court has always been justifiably advocating for adoption of a liberal approach in delay condoning matters but the message does not appear to have percolated down to all the Courts in the hierarchy. Such a liberal approach is adopted on the principle as it is realized that :- "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner, 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. The doctrine must be applied in a rational common sense pragmatic manner, 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." To counter this Judgment, the learned counsel for the opposite party relies on four judgments, in which the delay has not been condoned or in some cases, delay condoned has been set aside by the Supreme Court in appeal. 1st One is the case between Oriental Aroma Chemical Industries v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 . It is a case of delay of three years, to be exact 1067 days. At paragraphs 14, 15 and 16, the Hon'ble Supreme Court has dealt with the aspect of condonation of delay and the meaning of expression "sufficient cause". The Hon'ble Supreme Court has held that the law of limitation was founded on public policy and the legislation does not prescribe limitation with the object of destroying rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Hon'ble Supreme Court has held that the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The Hon'ble Supreme Court further held that the expression "sufficient cause" employed in Section 5 of the Limitation Act, and similar other statutes is elastic enough to enable the court to apply the law in a meaningful manner which sub-serves the ends of justice. The Hon'ble Supreme Court further held that the expression "sufficient cause" employed in Section 5 of the Limitation Act, and similar other statutes is elastic enough to enable the court to apply the law in a meaningful manner which sub-serves the ends of justice. Although, no hard-and-fast can be laid down in dealing with the applications for condonation of delay. The Apex Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. In the case of Isha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others, 2013 AIR SCW 6158, the Hon'ble Supreme Court has laid down thirteen principles to be followed while dealing with an application for condonation of delay. We find it appropriate to quote the same. "15. From the aforesaid authorities the principles that can broadly be culled out are: (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigation is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as to fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion-that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters." This judgment has a strong bearing in this case. At Clause (xi), the Hon'ble Supreme Court has held that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicality of law of limitation. 7. In the cased of Basawaraj and another v. The Special Land Acquisition Officer, AIR 2014 SC 746 , the Hon'ble Supreme Court has held that sufficient cause means that a party should not have acted in a negligent manner and there was a want of bona fide on its part in view of the facts and circumstances of a case and or it cannot be alleged that the party has not acted diligently or remained inactive. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise the discretion for the reason that whenever the court exercises discretion, it has to be exercised judicially. The applicant must satisfy the Court that he was prevented by any sufficient cause from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow application for condonation of delay. The Hon'ble Supreme Court at Paragraph 12 has held that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. 8. In the case of Brijesh Kumar and others v. State of Haryana and others, 2014 AIR SCW 1831, the Hon'ble Supreme Court refused to condone the delay of 10 years two months and 29 days in filing appeal. At paragraph 11 of the aforesaid judgment, the Hon'ble Supreme Court has held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. At paragraph 11 of the aforesaid judgment, the Hon'ble Supreme Court has held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fide of inaction or negligence would deprive a party of the protection of section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. The Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone. The Hon'ble Supreme Court further held that if a person has taken a relief approaching the Court just or immediately after the cause of action has arisen, other persons cannot take benefit thereof approaching the Court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person: 9. This being the settled principles of law, we have given anxious thought to it. From the facts and circumstances of the case, it is clear that the opposite party is a Inspector of Excise and the petitioner is an Advocate making entry into the profession at a belated stage. Though, the learned Counsel for the petitioner submits that there is a delay of 51 days, the office has pointed out that there is a delay of 2 years 68 days in preferring the appeal. 10. From the aforesaid judgments cited by the learned Counsel for the parties and the judgment rendered by the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another (Supra), we are of the opinion that it is not necessary to explain each days of delay and moreover, the Courts in India exists and known for ability to dispense justice and not hide behind technicality. Though the petitioner has filed this petition along with an affidavit, in other words, her petition is supported by annexing affidavit, the counter filed by the opposite party is not supported by any affidavit. Rather, it has been signed by the counsel for the opposite party only. Though the petitioner has filed this petition along with an affidavit, in other words, her petition is supported by annexing affidavit, the counter filed by the opposite party is not supported by any affidavit. Rather, it has been signed by the counsel for the opposite party only. From the aforesaid aspect, it is clear that there was no bona fide and meaningful assurance made by the opposite party. This Court is inclined to believe that the opposite party was giving false assurance to the petitioner that matter would be settled and he 'would provide all the facilities and that is reason, the petition should be allowed. Moreover, it is seen that in ex-parte decree, a judgment has been passed in favour of the opposite party. There is no order regarding permanent alimony or monthly alimony. Only on this score, we are of the opinion that a meritorious matter should not be allowed to be nipped at the bud in order to perpetuate injustice in favour of a party. Hence, the application is allowed. We condone the delay of 2 years, 2 months and 5 days in filing appeal. There shall be no orders as to the costs. 11. The Misc. Case is disposed of.