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2022 DIGILAW 106 (CHH)

Sharda Prasad Jaiswal v. Usha Jaiswal

2022-02-24

GOUTAM BHADURI, RAJANI DUBEY

body2022
JUDGMENT : Rajani Dubey, J. 1. Heard on IA No.1/2020, application for condonation of delay in filing the appeal. 2. The appellant has preferred the present appeal under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 20.10.2015 (Annexure-A/1) passed by the learned Family Court, Korba in Civil Suit No.62-A/2008, whereby the learned Family Court has rejected the suit for divorce filed by the appellant husband. 3. The appellant has filed this application (IA No.1) for condonation of delay caused in filing the instant appeal on the ground that he filed a suit for divorce against his wife, which was dismissed by the learned Family Court vide judgment and decree dated 20.10.2015, but since his local counsel did not inform him about the said judgment and decree and thereafter also when he approached the counsel at Bilaspur for filing of an appeal, but unfortunately he died, therefore, the appeal could not be filed within limitation. 4. Learned counsel for the appellant submits that the impugned judgment and decree was passed on 20.10.2015 vide Annexure-A/1, but the same was not informed to the appellant by his local counsel and when the appellant contacted the Court personnels in the month of October, 2017, then only he got to know that the judgment and decree has already been passed on 20.10.2015. Thereafter, the appellant applied for certified copy of the judgment and decree on 28.10.2017, which he got on 25.11.2017 and immediately thereafter he provided the entire file to local counsel and then he came to Bilaspur along with his local counsel and met with counsel at Bilaspur, who assured him of filing appeal within time, but unfortunately after sometime the said counsel died. When the appellant tried to know about his appeal, then he got to know that the appeal has not been filed before the High Court, thus the delay caused in filing the instant appeal is due to lack of knowledge of the appellant being a senior citizen as of now, non information by his local counsel at Korba and non filing of the appeal by his counsel at Bilaspur on account of his sudden demise, as such the delay on his part is bonafide, therefore, the application may kindly be allowed in the interest of justice and the delay of 1514 days in filing the appeal may kindly be condoned. Learned counsel has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the matter of B. Madhuri Goud v. B. Damodar Reddy (2012) 12 SCC 693 . 5. Learned counsel for the respondent vehemently opposes the argument advanced by learned counsel for the appellant and submits that after separation of both the parties, various cases regarding maintenance, return of streedhan, dissolution of marriage etc. have been filed against each other, therefore, in no circumstances, it can be said that the appellant had no knowledge about non filing of appeal within limitation, thus the same is not bonafide. He further submits that the suit preferred by the appellant husband for divorce under Section 13 of the Hindu Marriage Act, 1955 was dismissed by the learned Family Court, Korba on 24.01.2012 in Civil Suit No.62-A/2008, against which he filed appeal before this High Court bearing FA(M) No.99/2012. The High Court set aside the judgment and decree dated 24.01.2012 and remanded the case for rehearing and adducing evidence of both the parties and deciding the case afresh. Thereafter, the learned Family Court passed the impugned judgment and decree dated 20.10.2015, whereby the suit for divorce was dismissed. The High Court set aside the judgment and decree dated 24.01.2012 and remanded the case for rehearing and adducing evidence of both the parties and deciding the case afresh. Thereafter, the learned Family Court passed the impugned judgment and decree dated 20.10.2015, whereby the suit for divorce was dismissed. He further submits that the respondent wife filed a suit bearing Civil Suit No.154-A/2016 before the Family Court, Korba on 20.07.2016 against the appellant husband for return of streedhan, which was partly allowed vide judgment and decree dated 15.12.2017 and streedhans/household articles except scooter and jwellery were directed to be returned back to respondent wife, against which the appellant husband filed appeal bearing FA (M) No.14/2018 before the High Court on 15.01.2018 itself, which is connected with this appeal, whereas the judgment and decree (Annexure-A/1) was passed on 20.10.2015, but the same was challenged by filing an appeal on 18.03.2020, thus the stand taken by the appellant husband that he had no knowledge about the impugned judgment and decree does not appear to be reasonable, as he was regularly attending the court proceedings and the reason mentioned in the delay application that the appeal could not be filed due to death of earlier counsel is also not acceptable, as the appellant has not mentioned as to on which date he provided the paper for filing of appeal to counsel at Bilaspur and on which date he obtained the information regarding non filing of appeal and merely mentioning that earlier counsel has not filed the appeal is not sufficient ground to condone the enormous delay of 4 years and no reason has been assigned as to why he could not enquire about his case during the period 20.10.2015 to 15.01.2018, whereas he has been continuously attending the court proceedings. Therefore, the delay of 1514 days in filing the instant appeal is not bonafide and accordingly the delay application may kindly be rejected and consequently the appeal be dismissed as well. Therefore, the delay of 1514 days in filing the instant appeal is not bonafide and accordingly the delay application may kindly be rejected and consequently the appeal be dismissed as well. Learned counsel has placed reliance on the judgments rendered by the Hon'ble Supreme Court in the matters of Sridevi Datla v. Union of India and others (2021) 5 SCC 321, Postmaster General and others v. Living Media India Limited and another (2012) 3 SCC 563 , P. Radha Bai and others v. P. Ashok Kumar and another (2019) 13 SCC 445 and Majji Sannemma @ Sanyasirao v. Reddy Sridevi and others Civil Appeal No.7696/2021, Judgment dated 16.12.2021. 6. Heard learned counsel for the parties and perused the material available on record. 7. It is clear from the documents filed by the appellant that he filed a suit for divorce on 11.08.2008 bearing Civil Suit No.62-A/2008 before the Family Court, Korba and the Family Court passed the judgment and decree on 24.01.2012, whereby the suit of the appellant was dismissed, against which the appellant filed appeal before this High Court bearing FA(M) No.99/2012 and this High Court by judgment dated 15.07.2014 set aside the judgment and decree dated 24.01.2012 and remitted the case to the Court below for providing complete opportunity to adduce evidence and hear the parties and to decide the case afresh. Learned Family Court after hearing the parties and adducing evidence again passed the judgment and decree dated 20.10.2015, whereby the suit of the appellant was again dismissed, against which the present appeal has been preferred by the appellant on 18.03.2020 after more than 4 years. The delay application (IA No.1) has been filed on the ground that the appeal could not be filed within limitation due to lack of knowledge of the appellant, non information of passing of judgment and decree by local counsel at Korba and thereafter non filing of appeal on account of sudden demise of counsel at Bilaspur, but the reason assigned in the application does not appear to be reasonable and acceptable, as various cases have been filed against each other (husband and wife), and some are still pending, thus it is crystal clear that the appellant was regularly attending the court proceedings. It is also worthwhile to mention here that earlier the respondent wife filed a suit bearing Civil Suit No.154-A/2016 before the Family Court, Korba against the appellant husband for return of streedhan, which was partly allowed and streedhans except scooter and jwellery were directed to be returned back to respondent wife, against which the appellant husband filed appeal bearing FA (M) No.14/2018 on 15.01.2018 itself, which is connected along with the present appeal, whereas the impugned judgment and decree (Annexure-A/1) was passed on 20.10.2015 and the same has been challenged on 18.03.2020 before this Court, thus even if it is assumed that the appeal could not be filed for the other reason mentioned in the delay application, then also there is no explanation for the delay caused during the period from 20.10.2015 to 15.01.2018, despite the fact that the appellant's another appeal is pending consideration and the appellant has been regularly attending the court proceedings. 8. The Hon'ble Apex Court in the matter of Majji (supra) held in paras 7(1), 7 (2), 7 (3) & 7 (4) as under:- “7.1 In the case of Ramlal, Motilal and Chhotelal (1962) 2 SCR 762 (supra), it is observed and held as under:- In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, “s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.” 7.2 In the case of P.K. Ramachandran (1997) 7 SCC 556 (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (2008) 17 SCC 448 (supra), it is observed as under: “The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” 7.4 In the case of Basawaraj (2013) 14 SCC 81 (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.” 9. Applying the law laid down by the Hon'ble Supreme Court in the present case, it is quite vivid from the documents filed by the appellant himself that various cases relating to maintenance, dissolution of marriage, return of streedhan etc. have been filed against each other (husband and wife) and some are also pending. The stand of the appellant that he could not file appeal within limitation due to lack of knowledge of the appellant being a senior citizen as of now, non information by his local counsel at Korba and non filing of the appeal by his counsel at Bilaspur on account of his sudden demise appears to be unjustified and unacceptable, as it is crystal clear from the documents that the appellant was regularly attending the court proceedings for the period 20.10.2015 to 18.03.2020. Apart from it, the appellant has also filed FA (M) No.14/2018 before this Court challenging the judgment and decree of the Family Court dated 15.12.2017, which is connected with the instant appeal, whereby the appeal of the respondent wife has been partly allowed and streedhans/household articles have been directed to be returned back to respondent wife. Thus, even if it is assumed that the appellant was not informed about passing of the judgment and decree dated 20.10.2015 by his local counsel at Korba and thereafter also when he came to know about the same and contacted the counsel at Bilaspur for filing appeal, who died unfortunately after some time, as such the appeal could not be filed, then also there is no explanation for the delay caused for the period 20.10.2015 to 15.01.2018 and no averment has been made in this regard in the delay application for condoning such an enormous delay of 1514 days, despite the fact that another appeal has been filed by the appellant himself during the aforesaid period and the same is pending and the appellant has been regularly attending the court proceedings through his counsel. Thus, the delay caused in filing the instant appeal cannot be held to be bonafide. 10. In view of the foregoing discussions, we are of the opinion that the appellant has failed to give any acceptable and cogent reason much less any proper explanation sufficient to condone the enormous delay of 1514 days in filing the appeal. 11. Accordingly, the application (IA No.1) is liable to be and is hereby rejected. Consequently, the appeal is dismissed as barred by limitation. No order as to cost(s).