Delhi High Court
Vikas Yadav vs Neeru Yadav on 24 July, 2017
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 86/2017 and CM APPL. 18639/2017 (stay)
VIKAS YADAV ..... Appellant
Through: Mr. Pramod Kumar and Mr. Akash
Kumar, Advocates with appellant in person.
versus
NEERU YADAV ..... Respondent
Through: Dr. Ashutosh, Advocate with respondent
and her father in person.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 24.07.2017
CM APPL. 18640/2017 (for condonation of delay of 328 days in filing
the accompanying appeal)
1. The appellant is aggrieved by an order dated 02.05.2016 passed by the
learned Principal Judge, Family Courts, South, Saket, New Delhi, disposing
of an application filed by the respondent/wife under Section 24 of the HMA
Act, declining to grant any maintenance to the respondent/wife, but directing
the appellant to pay a sum of Rs.7,000/- per month for the minor son aged
15 years and Rs.3,500/- per month for the minor daughter aged 7 years, with
effect from the date of filing of the said application, i.e., from 31.01.2015.
2. We are informed that the divorce petition that the petitioner had filed
against his wife was dismissed for non-prosecution on 24.04.2017. On the
very next day, i.e., on 25.04.2017, the appellant filed the present appeal,
assailing the order dated 02.05.2016 alongwith an application seeking
condonation of delay of 328 days in filing the said appeal.
3. Counsel for the respondent enters appearance and states that he has
filed a reply in opposition to the condonation of delay application. He
submits that there is no explanation, much less just and sufficient reason
offered by the appellant for condoning the delay of almost 11 months in
filing the present appeal.
4. The only explanation offered by the appellant for seeking condonation
of delay of 328 days in filing the appeal is that after the impugned order
came to be passed, he had instructed the counsel appearing for him before
the Family Court to file an appeal, but the said counsel had adopted a
lackadaisical approach and did not pursue the matter or file the appeal. At
that time, the appellant could also not pursue the matter because his mother
was suffering from cancer and he was busy getting her treated in various
hospitals in Delhi. Finally, the appellant changed his counsel and filed the
present appeal through the newly engaged counsel.
5. Counsel for the respondent opposes the application and draws our
attention to the affidavit dated 13.06.2017 filed by Shri Kuldeep Singh
(father of the appellant and father-in-law of the respondent) stating inter alia
that the appellant had not extended any support for the treatment of his
mother except for taking her for a medical follow-up a couple of times and
that too with the intention of procuring documentary evidence, which he is
now misusing.
6. As the application is bereft of any material particulars, we have asked
learned counsel for the appellant to start by explaining the delay from the
date of passing of the impugned order on 2.5.2016 till the date of filing the
appeal on 25.4.2017. He seeks to rely on the OPD card issued by AIIMS in
favour of Smt. Tara Devi, the deceased mother of the appellant, on which
the first date found endorsed is of 11.08.2016, which does not throw any
light on the steps that the appellant had taken from 02.05.2016, till August,
2016 to process the appeal.
7. Next, learned counsel for the appellant refers to the air tickets of the
appellant and his mother dated 09.09.2016, to state that they had to travel
from Delhi to Mumbai for her treatment and the appellant had accompanied
her to Mumbai. Again, there is no explanation offered for the intervening
months of June, July and August, 2016. In any event, even as per the
appellant, his mother had succumbed to the terminal illness in the last week
of December, 2016 and that being the position, he ought to have approached
the Court within a reasonable period thereafter. Instead, the appeal was filed
by the appellant in the last week of April, 2017.
8. We are not at all satisfied with the explanation sought to be offered by
the appellant for seeking condonation of delay of a period stretching over
328 days in filing the appeal. A litigant is expected to be vigilant when
pursuing his legal remedies. He cannot simply sit back and approach the
court at his own leisure. The submission of the learned counsel for the
appellant that the appellant was in such deep grief on the demise of his
mother that he did not pursue his legal remedy, is found to be unacceptable.
Firstly, the order assailed by him before us is of 02.05.2016, when his
mother was alive. As per the statement of his own father, he did not attend
to his ailing mother. Secondly, the mother had expired in December, 2016,
whereas the appeal came to be filed at the end of April, 2017. Thirdly, the
appellant had not made any such submission before the learned Principal
Judge, Family Court on 25.04.2017, in the course of hearing of the divorce
petition filed by him, which was dismissed for non-prosecution. It is not as
if the appellant had stopped attending to his work and had confined himself
at home in the grief of his mother's demise. Strangely, the appellant is not
aware of the exact date of his mother's demise, which is 28.12.2016 whereas
the submission made before us is that she had expired on 29.12.2016.
9. We may also note that the appellant has tried to mislead the Family
Court by stating in February, 2017 that he had filed an appeal against the
impugned order, whereas no such appeal had been filed by then. A similar
submission was made on behalf of the appellant before the Family Court on
25.04.2017, when admittedly, the appeal was filed on the very same date
and the same had yet to be processed by the Registry.
10. For all the aforesaid reasons, we are of the opinion that the appellant
has not been able to show just and sufficient cause for seeking condonation
of delay of 328 days. The appellant has not approached this Court with
clean hands and his bonafides are suspect. The application is accordingly
dismissed with costs of Rs.10,000/- to be paid to the respondent within two
weeks. Resultantly, the appeal also stands dismissed.
HIMA KOHLI, J
DEEPA SHARMA, J
JULY 24, 2017
rkb/mk
