Chandni Rastogi vs Mayur Rastogi
2023 Latest Caselaw 4908 Cal

 D/L31                                 C.R.R.2359 of 2023
09.08.2023                                   With
    Bpg.
                                       CRAN 1 of 2023

                                      Chandni Rastogi
                                           Versus
                                      Mayur Rastogi


                   Mr. Avishek Sinha
                   Ms. Pallavi Priyadarshee.
                                    ...for the petitioner.

                   Mr. S. Chattopadhyay
                   Mr. Brijendra Pratap Singh.
                                 ...for the opposite party.

                                In Re: CRAN 1 of 2023.

                        An application under Section 5 of the Limitation Act and

             the affidavit-in-opposition of such application are taken up for

             hearing.

                        Learned advocate appearing for the petitioner has waived

             his right to file affidavit-in-reply to the affidavit-in-opposition filed

             by the opposite party to the application under Section 5 of the

             Limitation Act.

                        Learned advocate for the opposite party has specifically

             pleaded that the issue which has been taken up for the purposes of

             condoning the delay in preferring the revisional application is not

             substantiated by the petitioner. It is the duty of the petitioner who

             has taken up the issue for elaborating on the issue with supporting

             materials. To that effect, learned advocate for the opposite party has

             relied upon the judgment of Hon'ble Supreme Court in Bharat

             Singh and others Vs. State of Haryana and others reported in AIR
                         2




1988 SC 2181. Learned advocate has relied upon paragraph 13 of

the said judgment which is set out as follows:

          "13. As has been already noticed, although the point as

          to profiteering by the State was pleaded in the writ

          petitions before the High Court as an abstract point of

          law, there was no reference to any material in support

          thereof nor was the point argued at the hearing of the

          writ petitions. Before us also, no particulars and facts

          have been given in the special leave petitions or in the

          writ petitions or in any affidavit, but the point has been

          sought to be substantiated at the time of hearing by

          referring to certain facts stated in the said application by

          HSIDC. In our opinion, when a point which is ostensibly

          a point of law is required to be substantiated by facts, the

          party raising the point, if he is the writ petitioner, must

          plead and prove such facts by evidence which must

          appear from the writ petition and if he is the respondent,

from the counter-affidavit. If the facts are not pleaded or

the evidence in support of such facts is not annexed to

the writ petition or to the counter-affidavit, as the case

may be, the court will not entertain the point. In this

context, it will not be out of place to point out that in this

regard there is a distinction between a pleading under

the Code of Civil Procedure and a writ petition or a

counter-affidavit. While in a pleading, that is, a plaint or

a written statement, the facts and not evidence are

required to be pleaded, in a writ petition or in the

counter-affidavit not only the facts but also the evidence

in proof of such facts have to be pleaded and annexed to

it. So, the point that has been raised before us by the

appellants is not entertainable. But, in spite of that, we

have entertained it to show that it is devoid of any merit."

I have considered the submissions and I find that there is

force in the contentions advanced for considering the issue relating

to delay. However, delay, as such, is to be condoned in the

background of the case and facts and the main litigation.

The present revisional application has been preferred by

a lady who has been deprived of her maintenance by the learned

revisional court by setting aside the order of the learned Magistrate.

The petitioner has invoked the jurisdiction of this Court under

Section 482 of the Code of Criminal Procedure. So far as the

provisions of Section 482 of the Code of Criminal Procedure is

concerned, the High Court will exercise its powers for the ends of

justice and would assess regarding the factum of whether an

injustice has been caused in course of deciding a litigation by a

subordinate court. The delay of 47 days as pleaded may not in the

facts and circumstances appear to be very strong enough for

overlooking the issue for a delayed filing of the revisional application

but at the same time, this Court while deciding the same issue has

taken into account regarding the purposes for which the legislature

thought it fit and proper to incorporate Section 125 of the Code of

Criminal Procedure and the urgency involved in such cases.

Having considered the subject matter of the revisional

application and the proximate time of delay for filing of the present

application under Section 482 of the Code of Criminal Procedure, I

am of the opinion that the revisional application should be heard

out on merits. Thus, the delay is condoned.

Accordingly, CRAN 1 of 2023 is allowed.

Let the revisional application appear under the heading

"Listed Motion" in usual course.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)