Gaurav vs State Of U.P. And Another
2023 Latest Caselaw 17335 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:139911
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 44134 of 2022
 

 
Applicant :- Gaurav
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Mahesh Chandra Tiwari,Kiran Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicant and learned A.G.A. at the admission stage.

2. As per office report dated 13.07.2023, notice is served upon respondent no. 2. Despite service of notice no one is present on behalf of respondent no. 2, therefore, this court proceeds ex parte against the respondent no. 2.

3. The applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 13.12.2022 passed by the Additional Principal Judge, Family Court No. 1, Agra rejecting the application under Section 126(2) (Crl. Misc. Application No. 885 of 2022) moved on behalf of the present applicant (husband) to recall the final order dated 02.12.2021 passed in Case No. 1026 of 2015.

4. Facts culled out from the averment made in the application are that opposite party no. 2 (wife of the present applicant) has moved an application dated 08.12.2015 under Section 125 Cr.P.C. for maintenance. In the aforesaid matter the applicant has appeared and filed his written statement (Paper No. 5Ka), however, at the subsequent stage, he became absent. Consequently, an ex parte order dated 02.12.2021 has been passed fixing maintenance to the tune of Rs. 3,000/- per month from the date of filing of the application dated 08.12.2015, which was directed to be paid on or before 10th day of every calendar month. At subsequent stage, present applicant has moved an application dated 31.05.2022 under Section 126(2) of Cr.P.C. along with application for condonation of delay under Section 5 of Limitation Act to recall the order dated 02.12.2021. For condoning the delay, it has been averred by the applicant that due to the Covid-19 Pandemic he could not appear in the court in time, however, learned trial court has rejected the delay condonation application. Having been aggrieved instant application has been filed assailing the impugned order dated 13.12.2022.

5. Learned counsel for the applicant submits that sufficient reason has been assigned for condoning the delay in filing the application under Section 126(2) Cr.P.C., which was caused because of Pandemic Covid-19. However, learned trial court has illegally rejected the application without considering the curb imposed by the government due to Pandemic. It is further submitted that the application of the applicant may be considered sympathetically and one opportunity may be given to him to defend his case.

6. Having considered the submissions as advanced by the learned counsel for the applicant and perusal of record, it reveals that assailing the order dated 02.12.2021 passed by the trial court in proceeding under Section 125 Cr.P.C. the applicant (husband) has moved an application under Section 126(2) Cr.P.C. along with the delay condonation application at a belated stage on 31.05.2022. The curb imposed due to Covid-19 Pandemic has been assigned as the reason for delay in moving the application and for the absence, while the ex parte order dated 02.12.2021 was passed. It is no more res integra that the substantial justice and technicalities, if pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference-- Jai Jai Ram Manohar Lal Vs. National Building Material Supply; AIR 1969 SC 1267. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference - Ghanshyam Dass & Ors. Vs. Dominion of India & Ors., AIR (1984) 3 SCC 46. Apart from that in the judgment of Bhivchandra Shankar More vs. Balu Gangaram More & Ors (decided by Hon'ble Supreme Court on 07.05.2019), reported in 2019(6) SCC 387 it is expounded that in condoning the delay "sufficient cause" should be given liberal construction so as to advance substantial justice. The relevant paragraph nos. 15 and 16 of the aforesaid judgment are being quoted herein below:-

"15. It is a fairly well settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:-

"6. The expression "sufficient cause" used inSection 5of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."

16. Observing that the rules of limitation are not meant to destroy the rights of the parties, inN. Balakrishnan v. M.Krishnamurthy(1998) 7 SCC 123, this Court held as under:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts."

7. In this conspectus, as above, considering the matter sympathetically, I am of the view that one opportunity should be provided to the present applicant to defend his case before the trial court.

8. As such, instant application is allowed and the impugned order dated 13.12.2022 passed by the learned trial court, rejecting Section 5 application, is hereby quashed. The application under Section 126(2) Cr.P.C. is also hereby allowed. Consequently, ex parte order dated 02.12.2021 is quashed and original Case No. 1026 of 2015 under Section 125 Cr.P.C. is hereby restored to its original number and parties are relegated before the court below to get the matter decided afresh, under the condition that the present applicant shall furnish a bank draft amounting Rs. 1,00,000/- (One Lakh) in favour of his wife (opposite party no. 2) within one month from today, along with the certified copy of this order, which shall immediately be handed over to the opposite party no. 2. Aforesaid amount, in case deposited, shall be adjusted towards the arrears which is due in compliance of the order dated 02.12.2021.

9. It is made clear that in case the money is not deposited, as observed above, the effect and operation of the order of the date will not be enforceable and the order dated 02.12.2021 and 13.12.2022 passed by the court below shall be affirmed. It is further made clear that in case the aforesaid amount is deposited, learned trial court shall make endeavour to decide the application under Section 125 Cr.P.C. expeditiously, preferably, within a period of three months from the date of producing the certified copy of this order along with the bank draft.

Order Date :- 14.7.2023

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