Rakhee Gupta vs Pramod Bajaj
2015 Latest Caselaw 6806 Del

$~11.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        MAT.APP.(F.C.) 148/2014
%                                       Judgment dated 10th September, 2015
         RAKHEE GUPTA                                      ..... Appellant
                            Through :   Appellant in person.

                            versus

         PRAMOD BAJAJ                                     ..... Respondent

Through : Respondent in person.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J (ORAL)

CM APPL. 19956/2014

1. This is an application filed by appellant seeking condonation of 478 days' delay in filing the present Matrimonial Appeal against the Order dated 25.4.2013, by which the application filed by the appellant under Section 24 of the Hindu Marriage Act seeking interim maintenance was dismissed.

2. Both, the appellant and respondent, have appeared in person.

3. The reasons for delay have been explained by the appellant in this application stating that she had assailed the Order dated 25.4.2013 by filing CM (Main) petition, which was registered as No.665/2013, as she was under the impression that the CM (Main) petition would lie against the Order dated 25.4.2014. On 14.10.2014, when the matter was listed, the counsel for the respondent had relied on a decision rendered by a Division Bench of this court in the case of Manish Aggarwal v. Seema Aggarwal & Others, reported at 192 (2012) DLT 714 (DB) to contend that the

impugned order under Section 24 of the Hindu Marriage Act is an appealable order and hence an appeal would lie before the Division Bench. The request of the appellant herein to convert the CM (Main) petition into a Matrimonial Appeal was declined, however, liberty was granted to the appellant herein [appellant in CM(M) 665/2013] to file an appeal with an application for condonation of delay.

4. The appellant contends that since she was pursuing a wrong remedy, this by itself would amount to sufficient grounds for condoning the delay in filing the present appeal. The appellant has placed reliance on Section 14 of the Limitation Act, which reads as under:

"Section 14 in The Limitation Act, 1963

14 Exclusion of time of proceeding bona fide in court without jurisdiction. --

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh

suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature."

5. The respondent has vehemently opposed the present application on the ground that the appeal as also the application for condonation of delay is not bonafide. It is also contended that the appellant has suppressed and withheld material facts from this Court in as much that the appellant has failed to disclose that the impugned order was in fact assailed by the appellant by filing a Matrimonial Appeal on 23.5.2013. A print out of the case status has been handed over in Court today, which fact has not been denied by the appellant during the course of hearing of this application.

While the respondent contends that this was a material fact, which should have been disclosed, the appellant explains that since she has all along been appearing in person, after filing of the Matrimonial Appeal on 23.5.2013, she was advised that CM (Main) petition would be maintainable and, thus, she did not pursue the Matrimonial Appeal, which was filed by her on 23.5.2013. The appellant has also explained that she did not consider it necessary to disclose this fact in the application for condonation of delay as the Matrimonial Appeal filed by her was returned by the Registry and she did not re-file the same but filed the CM (Main) petition.

6. The respondent has placed reliance upon Basawaraj & Anr. v. The Special Land Acquisition Officer, reported at (2013) 14 SCC 81, more particularly para 15, which reads as under:

"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient

cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

7. The respondent has further relied upon Balwant Singh (Dead) v. Jagdish Singh and Ors., reported at (2010) 8 SCC 685, more particularly, para 16, which reads as under:

"16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications."

8. Respondent has also relied upon Cicily Kallarackal v. Vehicle Factory, reported at (2012) 8 SCC 524, more particularly paras 3 and 5, read as under:

"3. So far as these petitions are concerned, there is an inordinate unexplained delay of 1314 days in filing the petition against the order dated 16.9.2008 and of 851 days against the order dated 17.12.2009. Cause shown for not approaching this Court within limitation is stated that appellant was not physically fit and for some days remained in hospital. The cause shown is not sufficient as it was not necessary for the appellant to come here personally.

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay"

9. The sum and substance of the arguments of the respondent is that no sufficient grounds have been urged by the appellant seeking condonation of delay, the appellant has concealed material facts and the appellant is not bonafide.

10. We have heard the parties, considered their rival submissions and also examined the application as also the Order dated 14.10.2014, which reads as under:

"O R D E R 14.10.2014

C.M.APPL. No.10034/2014 (Exemption)

Allowed subject to all just exceptions.

C.M.APPL. No.13333/2014 and C.M.APPL. No.6541/2014

By way of C.M.APPL. No.13333/2014, appellant seeks delisting of the present petition and for registering it as a Matrimonial Appeal. Respondent has also filed C.M.APPL. No.6541/2014 for dismissal of this petition. Both these applications are taken up together. Learned counsel for respondent draws the attention of this Court to a decision of a Division Bench of this Court in Manish Aggarwal v. Seema Aggarwal and others 192 (2012) DLT 714 (DB) to contend that the impugned order under Section 24 of the Hindu Marriage Act is appealable and hence, an appeal before the Division Bench of this Court lies against the impugned order.

In view of aforesaid, instead of converting the main petition into an Appeal, liberty is given to appellant to file an appeal against the impugned order alongwith application for condonation of delay.

With aforesaid directions, both these applications are disposed of.

CM(M) 665/2013 and C.M.APPLN.10033/2014 (Stay)

In view of order passed in C.M.APPLNs.13333/2014 and 6541/2014, this petition and the application are disposed of with liberty to appellant to file an appeal before the Division Bench of this Court against the impugned order.

This petition and the applications are accordingly disposed of.

(Emphasis added)"

11. The Order dated 14.10.2014 would show that during the pendency of the CM(Main) No.665/2013, the appellant had made an application, being CM No.13333/2014, seeking a direction from the Court to de-list the petition [CM(Main) No.665/2013] and register the same as a Matrimonial Appeal. The Single Judge had declined this request of the appellant, but granted leave to the appellant to file an appeal along with an application for condonation of delay.

12. There is no quarrel to the proposition, sought to be urged by the respondent, that an application seeking condonation of delay should be bonafide, the delay should not be caused on account of inaction or a malafide attitude of the litigant.

13. It is equally well-settled that procedural laws are devised for advancing the cause of justice. It is also well-settled that the Courts must follow a liberal approach by striking a balance provided that the delay has not been caused on account of negligence, inaction, carelessness or for the reasons which are not explained.

14. While deciding application under Section 5, Limitation Act, justice oriented approach is required to be adopted. In Collector, Land Acquisition, Anantnag v. Mst Katiji, reported at AIR 1987 SC 1353 (1354), the Supreme Court held thus:

"...........The expression „sufficient cause‟ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. „Every day's delay must be explained‟ does not mean that a pedantic approach should be made. Why not every hour's

delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.........."

15. In the present case, the parties have appeared in person. The appellant had also appeared in person before the Single Judge when her request to convert the CM(Main) petition into an appeal was declined. We also accept the explanation given by the appellant that she did not mention filing of an earlier appeal as she did not think it was necessary, having regard to the fact that appellant has been appearing in person.

16. Having regard to the facts of the present case and taking into consideration the Order passed in CM (Main) No.665/2013 wherein liberty was granted to the appellant to file a Matrimonial Appeal seeking condonation of delay, which order was passed in the presence of the respondent and which was not opposed by the respondent, we are satisfied that the present application is bonafide as we see no reason for the appellant to cause delay when parties are fighting tooth and nail. To meet the ends of justice, we allow the present application and condone the delay. Let the Matrimonial Appeal be taken on record.

17. Present application stands disposed of.

MAT.APP.(F.C.) 148/2014 & CM APPL.19957/2014 (DELAY)

18. Another copy of rejoinder has been handed over by the appellant to the respondent in Court today. The respondent submits that he wishes to go through the rejoinder, which runs into 130 pages.

19. List on 30.11.2015, as jointly prayed.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J SEPTEMBER 10, 2015 msr