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$-21 HIGH COURT OF DELHI
MAT.APP.(F.C.) 25/2015
ASHOK KUMAR Appellant
Through: Mr.Dewal Singh and Mr.Amit Goel, Advocates.
MAT.APP.(F.C.) 25/2015
ASHOK KUMAR Appellant
Through: Mr.Dewal Singh and Mr.Amit Goel, Advocates.
VERSUS
KAVITA Respondent
Through:
Through:
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE LS.MEHTA
11.03.2015 C.M.No.4466/2015 (Exemption)
Exemption granted, subject to alljust exceptions.
Application stands disposed of.
MAT.APP.rr.C.) 25/2015 In the present appeal filed by the appellantunder Section 19(4) of the
Family Court Act, challenge has been laid to the impugned order dated
09.02.2015 whereby the learned Judge, Family Court has dismissed the application filed by the appellant under Order XI Rule 9 read with Section
151 ofthe Code of Civil Procedure being devoid of any merit.
Assailing the said order dated 09.02.2015, counsel appearing for the
2015:DHC:11673-DB appellant submits that the divorce petition filed by the appellant under
Section 13 (1) (ia) and 13 (1) (ib) of the Hindu Marriage Act in the year
2007 was dismissed by the learned Trial Court o24.01.2009 in default due to non-appearance of the appellant or his counsel. Counsel further submits that the appellant had filed an application under Order XI Rule 9 read with
Section 151 CPC to seek restoration of his divorce petition on 28.01.2014.
Along with the said application, the appellant had also filed separately an application under Section 5 of the Limitation Act, but the learned Trial
Court without appreciating the arguments advanced by -the appellant, dismissed the same.
The grievance raised by the appellant in the present appeal is that the appellant had disclosed sufficient reasons due to which he was prevented to seek restoration of his divorce petition. The appellant submits that the counsel who was earlier engaged by him had advised him not to appear before the Court and whenever his presence would be required, he will be informed. Counsel further submits that time and again the appellant made efforts to contact his previous counsel, but every time the previous counsel used to avoid him on one or the other pretext. Counsel further submits that it was only in the month of August, 2013, the appellant had engaged a new counsel so as to enquire about the status ofhis case and on 24.01.2009, he came to know that his petition already stands dismissed in default. Counsel also submits that the talks of compromise were in progress between the parties in acase filed by the respondent under Section 125 Cr.P.C., but since no compromise had arrived at between the parties, there was no option left with the appellant but to seek restoration ofhis divorce petition.
We have heard learned counsel for the appellant and have gone through the material placed on record.
The divorce petition under Section 13 (1) (ia) and 13 (1) (ib) of the
Hindu Marriage Act was preferred by the appellant on 07.11.2007 and the same was dismissed in default on 24.01.2009 due to non-appearance of the appellant or his counsel. The restoration of his divorce petition was sought by the appellant by filing an application under Order XI Rule 9 read with
Section 151 CPC on 28.01.2014. It has thus taken the appellant morethan 5 years in seeking the restoration of his divorce petition. The appellant is stated to be a constable in Delhi Police and thus it cannot be believed that the lawyer would not have responded to the appellant about the progress of his case. Surprisingly, in the application as well as in the present appeal, the appellant has not even disclosed the name of his counsel who was earlier
- engaged by him and was not responding to him. The apphcation moved by the appellant also does not suggest any action taken by the appellant against the said counsel for having not responded to him despite the alleged efforts made by him. No correspondence has also been placed on record by the appellant to show that atany stage hehad written any communication tothe counsel to respond abouttheprogress of his case. Beinga constable in Delhi
Police, he could have very well gone to the concerned Court to ascertain the exact status of his case and it is quite apparent that the appellant never made any such effort and it is only after a long gap of 5 years that he took steps to seek restoration of his divorce petition. The reckless conduct ofthe appellant does not call for any indulgence by this Court and in such a case the plea of the Court adopting a hyper-technical approach is not available to him.
There is no merit in the present appeal and the same is hereby dismissed.
MARCH 11, 2015 'dc' KAILASlTGAMBfflR, J
HON'BLE MR. JUSTICE LS.MEHTA
11.03.2015 C.M.No.4466/2015 (Exemption)
Exemption granted, subject to alljust exceptions.
Application stands disposed of.
MAT.APP.rr.C.) 25/2015 In the present appeal filed by the appellantunder Section 19(4) of the
Family Court Act, challenge has been laid to the impugned order dated
09.02.2015 whereby the learned Judge, Family Court has dismissed the application filed by the appellant under Order XI Rule 9 read with Section
151 ofthe Code of Civil Procedure being devoid of any merit.
Assailing the said order dated 09.02.2015, counsel appearing for the
2015:DHC:11673-DB appellant submits that the divorce petition filed by the appellant under
Section 13 (1) (ia) and 13 (1) (ib) of the Hindu Marriage Act in the year
2007 was dismissed by the learned Trial Court o24.01.2009 in default due to non-appearance of the appellant or his counsel. Counsel further submits that the appellant had filed an application under Order XI Rule 9 read with
Section 151 CPC to seek restoration of his divorce petition on 28.01.2014.
Along with the said application, the appellant had also filed separately an application under Section 5 of the Limitation Act, but the learned Trial
Court without appreciating the arguments advanced by -the appellant, dismissed the same.
The grievance raised by the appellant in the present appeal is that the appellant had disclosed sufficient reasons due to which he was prevented to seek restoration of his divorce petition. The appellant submits that the counsel who was earlier engaged by him had advised him not to appear before the Court and whenever his presence would be required, he will be informed. Counsel further submits that time and again the appellant made efforts to contact his previous counsel, but every time the previous counsel used to avoid him on one or the other pretext. Counsel further submits that it was only in the month of August, 2013, the appellant had engaged a new counsel so as to enquire about the status ofhis case and on 24.01.2009, he came to know that his petition already stands dismissed in default. Counsel also submits that the talks of compromise were in progress between the parties in acase filed by the respondent under Section 125 Cr.P.C., but since no compromise had arrived at between the parties, there was no option left with the appellant but to seek restoration ofhis divorce petition.
We have heard learned counsel for the appellant and have gone through the material placed on record.
The divorce petition under Section 13 (1) (ia) and 13 (1) (ib) of the
Hindu Marriage Act was preferred by the appellant on 07.11.2007 and the same was dismissed in default on 24.01.2009 due to non-appearance of the appellant or his counsel. The restoration of his divorce petition was sought by the appellant by filing an application under Order XI Rule 9 read with
Section 151 CPC on 28.01.2014. It has thus taken the appellant morethan 5 years in seeking the restoration of his divorce petition. The appellant is stated to be a constable in Delhi Police and thus it cannot be believed that the lawyer would not have responded to the appellant about the progress of his case. Surprisingly, in the application as well as in the present appeal, the appellant has not even disclosed the name of his counsel who was earlier
- engaged by him and was not responding to him. The apphcation moved by the appellant also does not suggest any action taken by the appellant against the said counsel for having not responded to him despite the alleged efforts made by him. No correspondence has also been placed on record by the appellant to show that atany stage hehad written any communication tothe counsel to respond abouttheprogress of his case. Beinga constable in Delhi
Police, he could have very well gone to the concerned Court to ascertain the exact status of his case and it is quite apparent that the appellant never made any such effort and it is only after a long gap of 5 years that he took steps to seek restoration of his divorce petition. The reckless conduct ofthe appellant does not call for any indulgence by this Court and in such a case the plea of the Court adopting a hyper-technical approach is not available to him.
There is no merit in the present appeal and the same is hereby dismissed.
MARCH 11, 2015 'dc' KAILASlTGAMBfflR, J
JUDGMENT