Chattisgarh High Court
Santoshpuri Goswami vs Smt. Tushi Goswami on 17 January, 2025
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA(MAT) No. 32 of 2023
1 - Santoshpuri Goswami S/o Sonpuri Goswami Aged About 39 Years R/o Village
Sirpur, Post Office Sirpur, Tahsil And District Mahasamund (C.G.)
... Petitioner(s)
versus
1 - Smt. Tushi Goswami S/o Santoshpuri Goswami Aged About 32 Years R/o Village
Sirpur, Post Office Sirpur, Tahsil And District Mahasamund (C.G.)
... Respondent(s)
For Appellant(s) : Ms. Sharmila Singhai, Senior Advocate with Ms. Ishita
Niyogi, Advocate
For Respondent(s) : Shri Prakhar Dutt, Advocate
DB : Hon'ble Smt. Justice Rajani Dubey
Hon'ble Shri Justice Sachin Singh Rajput
Order on Board
Per Sachin Singh Rajput, J.
17/01/2025
Heard both the parties on I.A.No.3/2023, application for condonation of
delay under Section 5 of the Limitation Act, 1963. This appeal is barred by
limitation of 923 days.
2. Learned Senior Advocate for the appellant submits that the application
for grant of divorce filed under Section 13 (1) of Hindu Marriage Act, 1955
was dismissed by the learned Family Court, Mahasamund on 27/04/2018,
however, the information about the said order was never been communicated to
the appellant by counsel therein. The appellant is a priest in a temple situated
at village - Sirpur at Barnavapara Forest, District - Mahasamund (CG). She
submits that there is no proper communication source available in that area.
There are network issues also because of the Forest range. The appellant used
to live in a Samajik Bhawan (Community Hall) made by Dhruv Samaj. The
appellant was facing criminal trial which was lodged by the respondent / wife.
She submits that when the appellant called his local counsel of divorce
proceedings, then he came to know about dismissal of divorce proceedings.
She submits that the appellant met with an accident in which his legs and
shoulder got injured and he was in pain for months. It is also submitted that the
appellant is a rustic villager and he is unaware of legal proceedings. He was
under impression that the order so passed by the Family Court is final and the
same cannot be challenged before any Forum. In the month of December, 2019,
when the dismissal of divorce proceedings was communicated to the counsel
who had conducted the criminal trial for appellant, he advised him to bring all
the documents, pleadings part to him for further advice. Thereafter, the counsel
who conducted criminal trial advised him to challenge the dismissal order
before the Hon'ble High Court and then he applied for getting the certified
copies from the record section. It is submitted that during Covid-19 pandemic,
due to lock down the appellant could not contact his counsel and as soon as the
lock down was lifted, he contacted his counsel and then he came to know that
due to spread of corona virus, his appeal could not be filed. Then he himself
took all the documents and challenged the said judgment and decree before this
Court. She submits that the delay in filing this appeal is bonafide and if the
delay is not condoned, the appellant will suffer irreparable loss as the marriage
between the parties have completely broken and they cannot live together
under one roof. Therefore, she prays that the delay may be condoned and the
appeal may be heard. She placed reliance on the judgment of Hon'ble Supreme
Court in the case of Esha Bhattacharjee v. Managing Committee of
Raghunathpur Nafar Academy and ors., (2013) 12 SCC 649 and N.
Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123.
3. Shri Prakhar Dutt, counsel for the respondent / wife submits that
sufficient cause has not been shown for delay in filing the appeal. The delay is
inordinate and therefore, the application may be rejected.
4. In the case of N.Balakrishnan (supra), Hon'ble Supreme Court held as
under -
"11. Rules of limitation are not meant to destroy the right 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 necessitation newer persons to seek legal remedy by
approaching the Courts. So a life span must be fixed for each
remedy. Unending period for launching the remedy may lead
to unending uncertainty and consequential anarchy. The law
of limitation is thus founded on public policy. It is enshrined
in the maxim interest reipublicae up sit finis litium ( it is for
the general welfare that a period be putt to litigatin). Rules of
limitation are not meant to destroy the rights of the parties.
They are meant to see that parties do not resort to dilaory
tactics but seek their remedy promptly. The idea is that every
legal remedy must be kep alive for a legislatively fixed period
of time.
12. A court knows that refusal to condone delay would result
in foreclosing a suitor from putting forth his cause. There is
no presumption that delay in approaching the Court is
always deliberate. This Court has held that the words
sufficient cause under Section 5 of the Limitation Act should
receive a liberal construction so as to advance substantial
justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR
1969 Sc 575] and State of West Bengal Vs. S.A.No.331 of
2013 The Administrator, Howrah Municipality [ AIR 1972 SC
749]."
5. Further in the case of Esha Bhattacharjee (supra), parameters have been
laid down for considering the application for condonation of delay and it has
been observed as under -
"21. From the aforesaid authorities the principles that can broadly
be culled out are:
i) There should be a liberal, pragmatic, justice-oriented,
non- pedantic approach while dealing with an application
for condonation of delay, for the Courts are not supposed to
legalise injustice but are obliged to remove injustice.
ii) The terms sufficient cause should be understood in their
proper spirit, philosophy and purpose regard being had to
the fact that these terms are basically elastic and are to be
applied in proper perspective to the obtaining fact-situation.
iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and
uncalled for emphasis.
iv) No presumption can be attached to deliberate causation
of delay but, gross negligence on the part of the counsel or
litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief
because the Courts are required to be vigilant so that in the
ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the
conception of reasonableness and it cannot be allowed a
totally unfettered free play.
viii) There is a distinction between inordinate delay and a
delay of short duration or few days, for to the former
doctrine of prejudice is attracted whereas to the latter it may
not be attracted. That apart, the first one warrants strict
approach whereas the second calls for a liberal delineation.
ix) The conduct, behavior and attitude of a party relating to
its inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the
Courts are required to weigh the scale of balance of justice in
respect of both parties and the said principle cannot be given
a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the Courts should be
vigilant S.A. No.331 of 2013 not to expose the other side
unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized
and the approach should be based on the paradigm of
judicial discretion which is founded on objective reasoning
and not on individual perception.
xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude."
6. In the case in hand, though the appeal was filed with delay, some
grounds have been shown by the appellant that the appellant is a temple Priest
in village -Sirpur at Barnavapara Forest, District - Mahasamund (CG), there is
no source of communication available in that area, there are network issues in
the forest, the appellant is residing in community hall made by Dhruv Samaj. It
has been further argued that the appellant contacted with his local counsel of
his divorce proceedings, he was informed about the dismissal of the divorce
proceedings. A ground has also been taken that he met with an accident and
there was injury on his leg and shoulder and he was in pain for months. It has
also been argued that the appellant is a rustic villager and he was unaware of
the legal proceedings. He has also taken a defence that in the month of
December, 2019 he contacted his local counsel, thereafter he obtained certified
copies and due to pandemic Covid -19 ensued. Therefore, he could not file the
appeal.
7. It has to be seen that the dispute is between the spouses. The application
for grant of divorce filed by the appellant has been dismissed. From the above
stated material, it is quite vivid that while considering the application under
Section 5 of the Limitation Act, liberal approach should be made. Dismissal of
this application would lead to closing of his path to agitate dismissal of the
application for divorce. Therefore, taking into consideration the submissions
made by learned senior counsel and also considering the reasons assigned, in
the opinion of this Court, sufficient cause has been shown for filing the appeal
belatedly particularly relying upon the judgments cited above.
At the same time, it has to be seen that the respondent be compensated
adequately. Accordingly the appellant shall pay Rs.10,000/- to the respondent
within a period of 30 days from the date of receipt of copy of this order failing
which the order shall lose its efficacy resulting into dismissal of the application
as well as appeal.
8. Accordingly, the application for condonation of delay is allowed. Delay
in filing the appeal is condoned.
9. List this case for admission after two weeks.
Sd/- Sd/-
(Rajani Dubey) (Sachin Singh Rajput})
JUDGE JUDGE
Deepti
DEEPTI HARIKUMAR
HARIKUMAR Date:
2025.01.21
13:34:15 +0530
