Delhi High Court
O V S vs R S @ R K on 22 February, 2019
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgement: 22nd February, 2019
+ MAT.APP.(F.C.) 48/2019
OVS ..... Appellant
Through: Mr.Ankur Gulyan Panda, Advocate
versus
[email protected] ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
C.M.8259/2019 (exemption)
1. Exemption is allowed subject to just exceptions.
2. Application stands disposed of.
C.M.8258/2019 (delay in filing) & C.M.8260/2019 (delay in refiling)
3. CM 8258/2019 has been filed by the appellant seeking condonation of
444 days' delay in filing the present appeal and CM 8260/2019 has
been filed by the appellant seeking condonation of 12 days' delay in
re-filing the present appeal.
4. The brief facts of the present case are that the appellant/husband of the
respondent had filed a petition, being HMA No.61463/2016, seeking a
decree of divorce on the ground of cruelty under Section 13 (1) (i-a) of
the Hindu Marriage Act, 1955. The said petition was dismissed by the
Family Court vide order dated 04.09.2017, which has given rise to the
present appeal.
5. Learned counsel for the appellant submits that the grounds, seeking
condonation of delay in filing and re-filing the present appeal, are that
the father of the appellant is about 80 years of age. In the month of
August, 2017, he started suffering from breathing problems.
Simultaneously, his father also had some vision problem due to which
he had to undergo lasik session between August, 2017 to November,
2017. The father of the appellant was hospitalized in Sukhmani
Hospital as he was suffering from breathing problems on account of
rising pollution in city.
6. Counsel for the appellant further submits that after the Doctors
declared the father of the appellant fit to travel to California, where the
appellant is residing, his father, on 18.12.2017, flew to San Francisco
but upon reaching at San Francisco airport, his father suffered a
massive heart attack and was immediately rushed to nearest hospital.
Since then his father had undergone various procedures for heart,
kidneys and blockage in the limbs. Counsel next submits that the
father of the appellant had undergone another procedure for
angioplasty of left leg on 15.10.2018.
7. It is next submitted by the counsel that even the attorney of the
appellant was also in California, USA, for the treatment of his father
between 06.09.2018 to 07.10.2018. Counsel next contends that since
the appellant was running from pillar to post for the treatment of his
father and for his responsibilities towards his job neither the appellant
nor his attorney could communicate with their counsel regarding the
status of the divorce case nor could they discuss the further course of
action.
8. Counsel for the appellant further contends that a certified copy of the
final order passed by the Family Court and the complete case file was
received by the attorney holder of the appellant on 03.01.2018.
Counsel contends that the delay in filing and re-filing of the present
appeal is not deliberate and it is on account of the poor health of the
father of the appellant and accompanying circumstances, and, thus, the
matter was inadvertently ignored. Counsel, in these circumstances,
prays that the delay in filing and re-filing the present appeal may be
condoned.
9. We have heard learned counsel for the appellant and also perused the
grounds taken in both the applications seeking condonation of delay in
filing and re-fling the present appeal.
10. It would be useful to reproduce paragraphs 3 and 4 of the application,
which set out the grounds seeking condonation of delay:
"3. That the Appellant/Applicant's father is about 80
years old and began experiencing breathing difficulties in late
Aug'2017. The Appellant's father also suffered from some
growth in his eye vessels which required laser session every 3-
4 days between Aug'2017 - Nov'2017. Thereafter, the
Appellant's father was hospitalized at Sukhmani Hospital in
late Nov'2017 for as he was suffering from breathing
difficulties on account of the rising pollution in the city. After
being cleared to travel to California, USA by his doctors, the
Appellant's father flew to San Franscisco but upon at San
Francisco Airport on 18.12.2017, the Appellant's father
suffered a massive heard attack and was immediate rushed to
the nearest hospital for emergency treatment. Since then, the
Appellant's father's has undergone various procedure for
heart, kidneys and blockage in the limbs. The Appellant's
father has also undergone yet another procedure on
15.10.2018 for Angioplasty of left leg (artery). Even the
attorney holder was in California, USA for his father's
treatment and care between 06.09.2018 - 07.10.2018. As the
Appellant was required to do a log of running around for his
father's treatment, and for his responsibilities towards his job
neither the appellant, nor the attorney holder could
communicate with their counsel regarding the status of the
divorce case, nor discuss any further course of action. The
certified copy of the order and the complete case file was
received by the attorney holder on 03.01.2018. On account of
the poor health of the father of the Appellant and attorney
holder, the matter was inadvertently ignored and as a result
there is delay of approximately 203 days in preferring the
present appeal. It is submitted that the delay was neither
deliberate nor malafide and no prejudice would be caused to
the Respondent if the same is condoned.
4. That while the attorney holder received certified copy of the
final order and complete file on 03.01.2018, in the above
stated circumstances, the final order and decree passed in the
matter being HMA Case No.61463/2016 titled as Om Vir
Singh Vs.Radhika Singh got neglected and neither the
Appellant nor the attorney holder could seek instructions from,
or discuss future course of action from their counsel."
11. A reading of the application seeking condonation of delay in filing the
appeal would show that 80 years' old father of the appellant remained
unwell between August, 2017 to November, 2017 while he was in
Delhi. This ground has no bearing to the delay in filing the present
appeal, as admittedly, the appellant had appointed his elder brother as
his attorney to pursue his litigation. Additionally, the father was
unwell in India while the appellant was in the USA. Thereafter, the
next date mentioned in this application was 18.12.2017 when
apparently, the father of the appellant suffered a heart attack at San
Francisco airport and he was rushed to hospital. However, no
supporting document has been filed along with the application to show
that the father of the appellant was suffering from various diseases
during the period, as claimed in this application. Further no document
has been filed to show that the appellant had taken leave from his
office to take care of his father.
12. The Supreme Court of India has repeatedly held that the Courts must
adopt a liberal approach while deciding an application seeking
condonation of delay. It is also a settled law that while considering an
application seeking condonation of delay, the Court must be satisfied
that the delay was on account of sufficient cause and the application is
bonafide.
13. In the case of P. K. Ramachandran vs. State of Kerala reported at
(1997) 7 SCC 556, the Supreme Court of India held that prior to
deciding the application seeking condonation of delay, the Court must
record its satisfaction that the applicant was prevented by sufficient
causes in not approaching the Court within a period of limitation.
14. In the case of Balwant Singh Vs. Jagdish Singh, reported at 2010 (8)
SCC 685, while deciding an application under Order 22 Rule 9 of CPC
and Section 5 of the Limitation Act, it was held as under:
"25. We may state that even if the term "sufficient cause"
has to receive liberal construction, it must squarely fall
within the concept of reasonable time and proper conduct of
the party concerned. The purpose of introducing liberal
construction normally is to introduce the concept of
"reasonableness" as it is understood in its general
connotation.
26. The law of limitation is a substantive law and has
definite consequences on the right and obligation of a party
to arise. These principles should be adhered to and applied
appropriately depending on the facts and circumstances of
a given case. Once a valuable right has accrued in favour
of one party as a result of the failure of the other party to
explain the delay by showing sufficient cause and its own
conduct, it will be unreasonable to take away that right on
the mere asking of the applicant, particularly when the
delay is directly a result of negligence, default or inaction
of that party. Justice must be done to both parties equally.
Then alone the ends of justice can be achieved. If a party
has been thoroughly negligent in implementing its rights
and remedies, it will be equally unfair to deprive the other
party of a valuable right that has accrued to it in law as a
result of his acting vigilantly.
(emphasis added)
27. The application filed by the applicants lacks in details.
Even the averments made are not correct and ex facie lack
bona fide. The explanation has to be reasonable or
plausible, so as to persuade the Court to believe that the
explanation rendered is not only true, but is worthy of
exercising judicial discretion in favour of the applicant. If it
does not specify any of the enunciated ingredients of
judicial pronouncements, then the application should be
dismissed. On the other hand, if the application is bona fide
and based upon true and plausible explanations, as well as
reflects normal behaviour of a common prudent person on
the part of the applicant, the Court would normally tilt the
judicial discretion in favour of such an applicant. Liberal
construction cannot be equated with doing injustice to the
other party.
28. In State of Bihar v. Kameshwar Prasad Singh [(2000)
9 SCC 94 : 2000 SCC (L&S) 845] this Court had taken a
liberal approach for condoning the delay in cases of the
Government to do substantial justice. Facts of that case
were entirely different as that was the case of fixation of
seniority of 400 officers and the facts were required to be
verified. But what we are impressing upon is that delay
should be condoned to do substantial justice without
resulting in injustice to the other party. This balance has to
be kept in mind by the Court while deciding such
applications."
15. The question before us is whether the application, seeking
condonation of 444 days' delay filed by the applicant/appellant, is
bonafide, was the appellant prevented from filing the appeal due to
sufficient cause or the delay was on account of inaction or negligence.
16. While considering the application seeking condonation of delay, at the
outset, the Court must be satisfied that the delay was for sufficient
cause.
17. Having regard to the grounds urged in the present applications and the
settled law laid down from time to time, we are of the opinion that the
appellant has not been able to establish that he was prevented from
filing the appeal due to sufficient cause while the illness of the father
may not be in dispute. Thus, no grounds are made out to condone the
delay of 444 days' in filing and 12 days' in re-filing the present
appeal. The application for condonation of delay is not bonafide.
Accordingly, both the applications are dismissed.
MAT.APP.(F.C.) 48/2019
18. Apart from considering the applications seeking condonation of delay
in filing and re-filing the present appeal, we have also considered the
appeal on merits and, thus, examined the impugned order dated
04.09.2017 passed by the Family Court. The Family Court, while
considering various facts, had rightly rejected the petition seeking
grant of divorce as the same lacks material particulars. Besides, no
dates of the incidents, sought to be relied upon for cruelty, have been
detailed in the petition seeking divorce. The appellant has also failed
to provide necessary particulars in terms of Rule 7 of the Hindu
Marriage Rules, 1979, which reads as under:
7. Contents of petition.--In addition to the particulars
required to be given under Order VII, Rule I of the Code and
Section 20 (1) of the Act, all petitions under Secs.9 to 13 shall
state--
(a) to (f) xxxxx
(g) the matrimonial offence or offences alleged or other
ground, upon which the relief is sought, setting out with
sufficient particularity the time and places of the acts alleged
and other facts relied upon, but not the evidence by which they
are intended to be proved , e.g.--
(i) to (iii) xxxxx
(iv) in the case of alleged desertion, the date and the
circumstances in which it began, in the case of cruelty the
specific acts of cruelty and the occasion when and the place
where such acts were committed;
19. In view of the above, we find no infirmity in the impugned order dated
04.09.2017 passed by the Family Court.
20. Accordingly, present appeal stands dismissed.
C.M.8261/2019 (additional documents)
21. The application stands disposed of, in view of the order passed in the
appeal.
G.S.SISTANI, J.
JYOTI SINGH, J.
FEBRUARY 22, 2019
rb
