Rajesh Kathuria v. M Sasidhar

1. This is an application Limitation Act, 1963 seeking condonation of^^;^^toa^^iilingthe present appeal.

2. Challenge in this appeal is to the order dated 03.10.2015 passed by the Family Court on an application,filed-byrespondent (wife) under Section 24 ofthe Hindu Marriage Act, 1955. The condonation ofdelay isbeing sought on the following grounds:

(i) That post the passing of the impugned order dated 03.10.2015, the appellant had preferred an appeal which was filed in the month of December, 2015. (Precise date of filing neither disclosed in the petition nor is available even during the course of hearing.) MAT.APP(F.C.) 182/2017 Page1of[5] 2018:DHC:9276-DB

(ii) BetweenJanuarytoApril,2016,partieswerenegotiatingfor an out ofcourt settlement. On account ofthe talks ofsettlement thelearned counseldidnotre-filethe appeal whichwas retume tohimunder objections. Para5ofthe applicationdisclosesthat the talks of settlement failed, although there is no date mentioned as to when the talks failed.

(iii) Thatbetween01.02.2016to 09.02.2016, thetwinbrotherofthe appellant was diagnosed with cancer ofthe throat and he was admitted in the hospital. It is contended that the appellant was preoccupied in looking after his brother. Various dates have been mentioned between:23:i|2016 to 30.08.2017, when the brotherofthe appeUmtunde^^tChemotherapy.

(iv) That the appellant himself,suffered from an 'adjustment disorder' and was:';sufM^ from 'alcohol dependence Syndrome'. On 29g4|&6,g^J:|yas referred to SMS Hospital, Jaipur when he w%pre^ril|pdf^ent.

(v) On 29.10.2016, his ailing mother passed away.

(vi) On 17.02.2017^,his father was admttpd to hospital to undergo hernia operation^He wls-^ thu^ ^cupied in looking after his ailing father. As per Para 11 ofthe apphcation, it is only in the month of April 2017 that the appellant's father had been informed that the appeal had not been re-filed and the paper book was returned on 28.08.2017 and thereafter he approached the present advocate. MAT.APP(F.C.) 182/2017

3.

4.

5. Learned counsel for the appellant submits that the delay was on accountofthe bonafide reasons and not on account ofany negligence or inaction on his part. Learned counscl for the appellant has relied on JV. Balakrishnan versusM. Krisfrnamurthy reportedat(1998) 7SCC123 in supportof his contention that while considering the application under Section 5 of the Limitation Act, the Court must take aliberal approach mthe matter. Learned counsel for the respondent has vehemently opposed this application. It is submittedthatth^ appellanthas failed to complywith the various orders passed by the Family Gourt. As oftoday, more than Rs.1,25,00,000/- is due towards rnaintenance ofthe wife and the child. She fiirther submits that tliere is np^irlg on record which would show that between 03.10.2015 and the ^ejpffiling the present appeal, the appellantwas preventedi&om^^suih^ It is submittedthat after the appeal was filed/it.^asnt^'i^l^ on account ofnegligence and inaction. She submits'tH^t 'a" nilifhas been created in her favour which should not be easily disturbed while, deciding the appeal. We are also informed that a decree of divorce'has been granted in favour ofthe respondent/wife. We have heard the learned counsel for the parties and considered their rival submissions, while deciding the application under Section 5 of the Limitation Act; the Court must, at the outset, record its satisfaction towards the grounds urged for condonation of delay. It has been repeatedly held that the courts must take aliberal approach and not a MAT.APP(F.C.) 182/2017 ^ /; straightjacket approach while deciding an application under Section 5 ofthe Limitation Act, 1963, but the Court must consider whether the applicant was prevented by sufficient cause to approach the Court in time.

7. The Hon'ble Supreme Court in the case of Ram Nath Sao v. Gobardhan Sao reported at (2002) 3SCC195, while dealing with the expression "sufficient cause" within the meaning of Section 5of the Limitation Act held that the explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket fpnnula for accepting or rejecting an explanation fiimished for the delay. It was further held that 'While considering the matter the courts shoiild not lose sight ofthefact that by not taking steps within the time prescribed a valuable right has ' • i' ' '• ' '' accrued to the other party wHich^ shSuld not be lightly defeated by condoning delay in a roii(i^?0h0^ if' 'i '-f•

8. In the case of Brijesh State ofHaryana & Ors., reported atAIR 2014 SC1612, theApex Court hasheldasunder:- ".11. The courd: should nojt:;^adopt an injustice-oriented approach in rejecting the application for condonation ofdelay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bonafides ofan inaction or negligence would deprive a party of the protection ofSection 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Courtfor condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is notproperly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone." MAT.APP(F.C.) 182/2017 Page[4] of[5]

9. Thepresentapplicationseekingcondonationofdelayof709 days is to be decided onthetouch stone ofthe lawlaid downbytheApex Court. In our view, the application does not disclose sufficient grounds for delay of709 days in filing the appeal. Although, ithas been averred that the brother ofthe appellant was suffering from cancer but this was diagnosed only in the year 2016, while the impugned order was passed on 03.10.2015 and an appeal was filed by December,

2015. It was however not re-filed after it was returned with objections. The dates ofchemotherapy ofthe appellant's brother have been given as between 23.11.2016 to 30.08.2017 and are not relevant to explain the delay. ' •,.,.