Delhi High Court
Sanjeev Kumar Sharma vs Sangeeta Sharma on 17 July, 2017
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 52/2017, CM No. 13005/2017 (stay) & CM No.
11673/2017
SANJEEV KUMAR SHARMA ..... Appellant
Through: Mr. Aditya Swarup Agarwal and Mr.
Vishesh Wadhwa, Advocates.
versus
SANGEETA SHARMA ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 17.07.2017
1. The matter was passed over on the first call as none was present on
behalf of the respondent, nor has any reply been filed by her to this
application. Even on the second call, none is present on behalf of the
respondent.
2. The appellant/petitioner is aggrieved by an order dated 13.01.2015
passed by the Learned Principal Judge, Family Court, Tis Hazari Court,
whereunder, an application filed by his wife/respondent for seeking
maintenance for herself and her minor child was allowed and he was directed
to pay pendente lite maintenance from the date of filing the application, i.e.
from 04.07.2013. Contemporaneously, the main divorce petition filed by the
appellant/petitioner was dismissed for non-prosecution.
3. Accompanying the present appeal is an application (CM No.
11673/2017), for seeking condonation of delay of 763 days in filing the
accompany appeal. As per the averments made in the said application, the
previous counsel of the appellant did not apprise him about the pendency of
the application filed under Section 24 of the Hindu Marriage Act, 1955 and
about the passing of the impugned order which came to his knowledge only
after he received summons in an execution petition filed by the respondent,
bearing Ex.P. No. 3818/2016.
4. Learned counsel for the appellant states that on 21.11.2013, counsel for
the appellant who was present with him in Court had stated on instructions,
that the main petition should be disposed of in view of the fact that he wished
to withdraw the same. We may note that on the very same date, the Court
below had recorded that the application under Section 24 of Hindu Marriage
Act shall have to be disposed of first, prior to dismissing the main petition.
5. On 21.11.2013, the submission of the counsel for the appellant was
recorded to the effect that he had already paid a sum of Rs. 4500/- to the
respondent under the Section 125 CrPC petition filed by her. Observing that
the proceedings under Section 24 of the Hindu Marriage Act were still
pending in the main case and was required to be disposed off, the appellant
was directed to produce his bank statement on the next date of hearing and the
case was adjourned to 24.01.2014.
6. On 24.01.2014, the Presiding Officer was on leave and the matter was
adjourned to 14.03.2014. On 14.03.2014, learned counsels for the parties
were present and the case was adjourned as the Presiding Officer was on
leave. On 22.03.2014, none had appeared for the appellant. As a result,
Court notice was issued to him, returnable on 04.06.2014. On 04.06.2014, at
the request of the counsel for the appellant, the application for maintenance
was put up for arguments on 12.08.2014.
7. On 12.08.2014, Section 24 application was adjourned to 19.11.2014 for
arguments. On the said date, learned counsel for the appellant had stated that
he wished to withdraw the main petition. But, no order was passed acceding
to the said request. On 19.11.2014, again, none had appeared for the appellant
though, it was in the presence of his counsel that on the earlier date, an order
was passed for disposal of the maintenance application on the next date. After
the court waited till 2.30 pm, counsel for the appellant had turned up and
sought an adjournment. At his request, the case was adjourned to 13.01.2015
on which date yet again, none appeared for the appellant and the impugned
order came to be passed.
8. Having regard to the aforesaid proceedings, the argument of the
learned counsel for the appellant that the previous counsel had not apprised
him of the proceedings pending before the learned Family Court, is found to
be devoid of merits. We have noted above that on some dates, the appellant
was personally present and on several dates, the court had directed in the
presence of his counsel that arguments be addressed on the maintenance
application filed by the respondent. It shall have to be presumed that the
appellant was well aware of passing of the said orders. Despite the same,
he/his counsel elected not to appear on 13.01.2015, the date when impugned
order came to be finally passed.
9. We are, therefore, not persuaded by the explanation sought to be
offered on behalf of the appellant for his absence and that of his counsel on
13.01.2015, for condoning an inordinate delay of 763 days in filing the
accompanying appeal.
10. Even on merits, we are not inclined to interfere with the impugned
order whereunder the appellant has been directed to pay a sum of Rs. 10,000/-
per month to the respondent and the minor child in her custody w.e.f.
04.07.2013, keeping in mind the fact that the appellant was earning a sum of
Rs. 18,000/-(approx) per month in the year 2013-2014, as reflected from the
extract of his Bank passbook filed for the period between 01.01.2013 to
03.07.2013. In fact, a perusal of the relevant extract of his passbook reveals
that the credit entries in his account in respect of the salaries received, were in
the range of Rs. 18,000 to Rs. 20,000/-. Pertinently, the appellant does not
appear to have filed the extract of his Bank passbook after July 2013 which
would have thrown further light on his monthly salary as deposited in his
Bank account, for the years 2013-2014 and 2014-2015.
11. Given the aforesaid facts and circumstances, counsel for the appellant
cannot be permitted to urge that the salary of the appellant was far below Rs.
18,000/- per month in the year 2013-2014. He is still not in a position to
inform us as to what was the actual salary of the appellant in the subsequent
years.
12. Consequently, the present appeal is dismissed in limine as being devoid
of merits and the condonation of delay application is rejected as being
hopelessly time barred.
HIMA KOHLI, J
DEEPA SHARMA, J
JULY 17, 2017
ss
