O V S v. R S @ R K

Delhi High Court · 22 Feb 2019 · 2019:DHC:1252-DB

G. S. Sistani; Jyoti Singh

MAT.APP.(F.C.) 48/2019

2019:DHC:1252-DB

family appeal_dismissed Significant

AI Summary

The Delhi High Court dismissed the appeal and refused to condone delay, holding that the appellant failed to show sufficient cause for delay and that the divorce petition lacked necessary particulars under the Hindu Marriage Rules.

Full Text

MAT.APP.(F.C.) 48/2019
HIGH COURT OF DELHI
Date of Judgement: 22nd February, 2019

MAT.APP.(F.C.) 48/2019
O V S ..... Appellant
Through: Mr.Ankur Gulyan Panda, Advocate

VERSUS

R S @ R K ..... Respondent
Through:

CORAM:

HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH G.S. SISTANI, J. (ORAL)

C.M.8259/2019 (exemption)

JUDGMENT

1. Exemption is allowed subject to just exceptions.

2. Application stands disposed of. C.M.8258/2019 (delay in filing) & C.M.8260/2019 (delay in refiling)

3. CM 8258/2019 has been filed by the appellant seeking condonation of 444 days’ delay in filing the present appeal and CM 8260/2019 has been filed by the appellant seeking condonation of 12 days’ delay in re-filing the present appeal.

4. The brief facts of the present case are that the appellant/husband of the respondent had filed a petition, being HMA No.61463/2016, seeking a decree of divorce on the ground of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955. The said petition was dismissed by the Family Court vide order dated 04.09.2017, which has given rise to the 2019:DHC:1252-DB present appeal.

5. Learned counsel for the appellant submits that the grounds, seeking condonation of delay in filing and re-filing the present appeal, are that the father of the appellant is about 80 years of age. In the month of August, 2017, he started suffering from breathing problems. Simultaneously, his father also had some vision problem due to which he had to undergo lasik session between August, 2017 to November,

2017. The father of the appellant was hospitalized in Sukhmani Hospital as he was suffering from breathing problems on account of rising pollution in city.

6. Counsel for the appellant further submits that after the Doctors declared the father of the appellant fit to travel to California, where the appellant is residing, his father, on 18.12.2017, flew to San Francisco but upon reaching at San Francisco airport, his father suffered a massive heart attack and was immediately rushed to nearest hospital. Since then his father had undergone various procedures for heart, kidneys and blockage in the limbs. Counsel next submits that the father of the appellant had undergone another procedure for angioplasty of left leg on 15.10.2018.

7. It is next submitted by the counsel that even the attorney of the appellant was also in California, USA, for the treatment of his father between 06.09.2018 to 07.10.2018. Counsel next contends that since the appellant was running from pillar to post for the treatment of his father and for his responsibilities towards his job neither the appellant nor his attorney could communicate with their counsel regarding the status of the divorce case nor could they discuss the further course of action.

8. Counsel for the appellant further contends that a certified copy of the final order passed by the Family Court and the complete case file was received by the attorney holder of the appellant on 03.01.2018. Counsel contends that the delay in filing and re-filing of the present appeal is not deliberate and it is on account of the poor health of the father of the appellant and accompanying circumstances, and, thus, the matter was inadvertently ignored. Counsel, in these circumstances, prays that the delay in filing and re-filing the present appeal may be condoned.

9. We have heard learned counsel for the appellant and also perused the grounds taken in both the applications seeking condonation of delay in filing and re-fling the present appeal.

10. It would be useful to reproduce paragraphs 3 and 4 of the application, which set out the grounds seeking condonation of delay:

“3. That the Appellant/Applicant’s father is about 80 years old and began experiencing breathing difficulties in late Aug’2017. The Appellant’s father also suffered from some growth in his eye vessels which required laser session every 3- 4 days between Aug’2017 – Nov’2017. Thereafter, the Appellant’s father was hospitalized at Sukhmani Hospital in late Nov’2017 for as he was suffering from breathing difficulties on account of the rising pollution in the city. After being cleared to travel to California, USA by his doctors, the Appellant’s father flew to San Franscisco but upon at San Francisco Airport on 18.12.2017, the Appellant’s father suffered a massive heard attack and was immediate rushed to the nearest hospital for emergency treatment. Since then, the Appellant’s father’s has undergone various procedure for heart, kidneys and blockage in the limbs. The Appellant’s father has also undergone yet another procedure on 15.10.2018 for Angioplasty of left leg (artery). Even the

attorney holder was in California, USA for his father’s treatment and care between 06.09.2018 – 07.10.2018. As the Appellant was required to do a log of running around for his father’s treatment, and for his responsibilities towards his job neither the appellant, nor the attorney holder could communicate with their counsel regarding the status of the divorce case, nor discuss any further course of action. The certified copy of the order and the complete case file was received by the attorney holder on 03.01.2018. On account of the poor health of the father of the Appellant and attorney holder, the matter was inadvertently ignored and as a result there is delay of approximately 203 days in preferring the present appeal. It is submitted that the delay was neither deliberate nor malafide and no prejudice would be caused to the Respondent if the same is condoned.

4. That while the attorney holder received certified copy of the final order and complete file on 03.01.2018, in the above stated circumstances, the final order and decree passed in the matter being HMA Case No.61463/2016 titled as Om Vir Singh Vs.Radhika Singh got neglected and neither the Appellant nor the attorney holder could seek instructions from, or discuss future course of action from their counsel.”

11. A reading of the application seeking condonation of delay in filing the appeal would show that 80 years’ old father of the appellant remained unwell between August, 2017 to November, 2017 while he was in Delhi. This ground has no bearing to the delay in filing the present appeal, as admittedly, the appellant had appointed his elder brother as his attorney to pursue his litigation. Additionally, the father was unwell in India while the appellant was in the USA. Thereafter, the next date mentioned in this application was 18.12.2017 when apparently, the father of the appellant suffered a heart attack at San Francisco airport and he was rushed to hospital. However, no supporting document has been filed along with the application to show that the father of the appellant was suffering from various diseases during the period, as claimed in this application. Further no document has been filed to show that the appellant had taken leave from his office to take care of his father.

12,926 characters total

12. The Supreme Court of India has repeatedly held that the Courts must adopt a liberal approach while deciding an application seeking condonation of delay. It is also a settled law that while considering an application seeking condonation of delay, the Court must be satisfied that the delay was on account of sufficient cause and the application is bonafide.

13. In the case of P. K. Ramachandran vs. State of Kerala reported at (1997) 7 SCC 556, the Supreme Court of India held that prior to deciding the application seeking condonation of delay, the Court must record its satisfaction that the applicant was prevented by sufficient causes in not approaching the Court within a period of limitation.

14. In the case of Balwant Singh Vs. Jagdish Singh, reported at 2010 (8) SCC 685, while deciding an application under Order 22 Rule 9 of CPC and Section 5 of the Limitation Act, it was held as under:

“25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied

appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. (emphasis added)

27. The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.

28. In State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94: 2000 SCC (L&S) 845] this Court had taken a liberal approach for condoning the delay in cases of the Government to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.”

15. The question before us is whether the application, seeking condonation of 444 days’ delay filed by the applicant/appellant, is bonafide, was the appellant prevented from filing the appeal due to sufficient cause or the delay was on account of inaction or negligence.

16. While considering the application seeking condonation of delay, at the outset, the Court must be satisfied that the delay was for sufficient cause.

17. Having regard to the grounds urged in the present applications and the settled law laid down from time to time, we are of the opinion that the appellant has not been able to establish that he was prevented from filing the appeal due to sufficient cause while the illness of the father may not be in dispute. Thus, no grounds are made out to condone the delay of 444 days’ in filing and 12 days’ in re-filing the present appeal. The application for condonation of delay is not bonafide. Accordingly, both the applications are dismissed.

18. Apart from considering the applications seeking condonation of delay in filing and re-filing the present appeal, we have also considered the appeal on merits and, thus, examined the impugned order dated 04.09.2017 passed by the Family Court. The Family Court, while considering various facts, had rightly rejected the petition seeking grant of divorce as the same lacks material particulars. Besides, no dates of the incidents, sought to be relied upon for cruelty, have been detailed in the petition seeking divorce. The appellant has also failed to provide necessary particulars in terms of Rule 7 of the Hindu Marriage Rules, 1979, which reads as under:

7. Contents of petition.—In addition to the particulars required to be given under Order VII, Rule I of the Code and Section 20 (1) of the Act, all petitions under Secs.[9] to 13 shall state— (a) to (f) xxxxx (g) the matrimonial offence or offences alleged or other ground, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged and other facts relied upon, but not the evidence by which they are intended to be proved, e.g.—

(i) to (iii) xxxxx

(iv) in the case of alleged desertion, the date and the circumstances in which it began, in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed;

19. In view of the above, we find no infirmity in the impugned order dated 04.09.2017 passed by the Family Court.

20. Accordingly, present appeal stands dismissed. C.M.8261/2019 (additional documents)

21. The application stands disposed of, in view of the order passed in the appeal. G.S.SISTANI, J. JYOTI SINGH, J. FEBRUARY 22, 2019 rb

O V S v. R S @ R K

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation