Delhi High Court
Nitin Gupta vs Ruchika Gupta on 4 July, 2022
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 14.03.2022
Judgment delivered on: 04.07.2022
+ MAT. APP. (F.C.) 125/2019 & CM APPL. 19974/2019
NITIN GUPTA ..... Appellant
Through: Mr. Aayush Agarwala, Adv.
versus
RUCHIKA GUPTA ..... Respondent
Through: Respondent in-person
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
JASMEET SINGH, J
CM APPL. 19974/2019/ CONDONATION OF DELAY
1. The appellant has filed this application seeking condonation of 405
days in filing the appeal. It is submitted by the appellant that the
appeal was required to be filed by 28.12.2017 but the appellant was in
Judicial Custody from September 2016 up till August 2018 (almost a
period of 23 months) for being unable to pay the maintenance
awarded to the Respondent-wife in proceedings under the Domestic
Violence Act. Thereafter, he was undergoing medical treatment to
recover from ill health, and also took time to re-construct the entire
Trial Court record. It is for these reasons that the appellant was unable
to pursue his matters properly. No other explanation is provided for
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the delay.
2. A bare perusal of the medical records shows that the ailment referred
to by the appellant pertains to dental problems and thus was not of
such a nature which would have prevented the appellant from
pursuing his legal remedies. The appellant was also released from
custody from 17.08.2018 till 08.10.2018 i.e., for 53 days, vide order
dated 16.08.2018 of Ms. Neera Bhairoke, Ld. ASJ, Saket District
Court, Delhi. On 24.09.2018, the applicant/appellant was again
released as his sentence was suspended by the Hon'ble High Court of
Punjab and Haryana, Chandigarh. The appellant/applicant was on bail
from 24.10.2018 till 06.02.2019 i.e., 105 days. However, the
appellant/applicant filed his appeal in the Hon‟ble High Court of
Delhi on 06.02.2019.
3. In light of the above-stated facts, we find that the appellant has failed
to explain the delay in clear and unequivocal manner. The medical
record and the judicial custody of the appellant do not satisfy the court
in explaining the delay in filing the appeal and therefore, we do not
find any reason to condone the delay.
4. Even though the order of not condoning the delay would be enough to
dismiss the appeal, we also proceed to dispose of the appeal on the
merits.
MAT. APP. (F.C.) 125/2019
5. The present appeal has been filed by the appellant seeking setting
aside of the order dated 28.11.2017 passed by learned Addition
Principal Judge, Family Court, West Tis Hazari Court, New Delhi in
HMA No. 336/2014 titled "Ruchika Gupta vs. Nitin Gupta"
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6. It will be relevant to note down the list of dates for the disposal of the
present appeal.
Date Events
1. 16.01.2005 The Appellant and the Respondent got
married at New Delhi.
2. 25.10.2005 The Appellant and the Respondent had a son
who was named Honnish Gupta.
3. 26.07.2008 The Respondent filed a petition seeking
divorce from the Appellant on the ground of
cruelty and desertion.
4. 14.07.2014 The matter was listed for recording the
evidence of the Respondent when, on account of
pending mediation proceedings, it was listed on
03.12.2014.
5. 03.12.2014 The matter was listed for evidence when
Appellant failed to appear. As a result, his
evidence was closed and the matter was listed
for final arguments on 23.01.2015.
6. 23.01.2015 The final arguments in the matter were heard
from the Respondent and the case was put up
for orders for 07.03.2015.
7. 07.03.2015 The judgment was pronounced by the Family
Court, Tis Hazari and divorce was granted on
the ground of cruelty since the evidence led by
the Appellant and his father was not read as part
of the record.
7. On 18.04.2015, the appellant preferred a Misc. application in HMA
No.336/14 under Order IX rule 13 of the Code of Civil Procedure (in
short „CPC‟) for setting aside ex-parte judgment passed dated
07.03.2015. The Additional Principal Judge, Family Court vide the
impugned order was pleased to dismiss this application on the ground
that the appellant had neither been able to show any justifiable
reasons for his non-appearance nor been able to provide any reasons
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for the absence of his main counsel or the proxy counsel. The
appellant also failed to pay the balance costs of Rs. 3,000, imposed
earlier, to the Respondent-wife.
8. It is submitted by learned counsel for the appellant that the Family
Court had erred in dismissing the application moved by the appellant
under Order IX Rule 13 on the ground that the appellant failed to
satisfactorily explain his failure to appear on the date of his Court
hearing. The ld. counsel submitted that the appellant was unwell on
the date of hearing and has filed his medical history in this regard. He
has also submitted that the reason for the absence of his erstwhile
counsel was also clarified before the family court.
9. The appellant further submitted that on 03.12.2014, the appellant‟s
opportunity to lead evidence was closed by the Trial Court when the
Appellant failed to appear. The decree of divorce was passed against
the Appellant on the grounds of cruelty primarily because the
appellant‟s evidence was non-conclusive and hence the same could
not be read while the respondent‟s evidence went unrebutted. As a
result, the appellant could not lead any evidence against the
respondent and an ex-parte decree was passed holding the appellant
guilty of cruelty.
10. On merits it is submitted by the appellant that he did not wish to
contest the decree of divorce but is only aggrieved by the ex-parte
finding of cruelty rendered against him as it will prejudice his defence
in other pending proceedings between the parties.
11. On the other hand, the respondent, who appeared in person, submits
that the Appellant is only concerned with dragging this case and
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harassing the Respondent. It is also submitted that the medical history
of the Appellant makes it clear that he is only suffering from tooth
decay and teeth-related problems and even his MRI, which was
conducted regarding his alleged L3/L4 compression, shows that the
appellant had no abnormality in his spine.
12. As regards the delay in filing of this appeal, the respondent has
submitted that the appellant was legally entitled to file the appeal till
27.12.2017. It is submitted that he was in Judicial Custody from
September, 2016 till 16th August, 2018. However, it is stated that from
17.08.2018 till 08.10.2018 i.e., for 53 days, the appellant/applicant
was released from Custody vide order dt 16.08.2018 of Ms. Neera
Bhairoke, Ld. ASJ, Saket District Court, Delhi. Thereafter, the
appellant/applicant was again in Judicial Custody from 09.10.2018 till
23.10.2018 as he had been convicted under section 420 IPC by the
Hon‟ble Session Courts in Faridabad. Thereafter, the
appellant/applicant was enjoying the liberty of bail from 24.10.2018
till 06.02.2019 i.e., 105 days.
13. The respondent vehemently opposes the appeal filed by the appellant.
She even opposes the request of the appellant to convert the divorce
decree granted on the ground of cruelty to a divorce decree by mutual
consent.
14. We have heard Mr. Aggarwal, learned counsel for the appellant and
the respondent who appears in person. The application filed by the
appellant under Order IX Rule 13 of the CPC was dismissed on the
ground that neither the appellant nor his counsel has been able to
place any record for the apparent illness of the appellant or the
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counsel being outstation.
"The applicant has not placed on record/ any document to
show that he was unwell on the date fixed before this Hon'ble
Court nor his counsel has placed on record any documentary
evidence to show her being outstation. Even if, the main
counsel was not available the proxy counsel could have been
present as was the position on 24.07.2014. No reason has been
given as to why the respondent or his counsel did not appear on
03.12.2014. The applicant did not pay the balance cost of
Rs.3,000/- to the non-applicant/petitioner and on account of his
conduct I do not find any justification to allow the application.
As such the application under Order 9 Rule 13 CPC filed by the
respondent is dismissed."
15. To deal with the submissions made by the counsel for the appellant, it
would be necessary to peruse the application dated 18.04.2015 filed
by the appellant under Order IX Rule 13 of CPC for setting aside the
ex-parte judgment dated 07.03.2015. The only reason for non-
appearance in the application under Order IX Rule 13 of CPC has
been enumerated in para 2 &3 which read as under:
"2. That - on 23.01.2015 the counsel for the respondent was not
in Delhi due to family Function and when the counsel came in
Delhi inquired about the case to the respondent, the respondent
told to the' counsel that he was not well, and due to this, reason
he could not appear in the court not aware the date of the case.
3. That the counsel inadvertently could not note down the next
date -of hearing and when in another case on 07.03.2015 the
proxv counsel of' the counsel was present in the case he told to
the counsel that the case is listed for -today and due to in
another court the counsel could not appear, in the court"
16. Under Order IX Rule 13 the applicant has to satisfy the Court of
sufficient and cogent reasons for not being able to attend the hearing
of the suit on the relevant date. In the present case, the appellant has
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asserted that on 23.01.2015 his counsel was not in Delhi due to a
family function and the appellant was unwell and thus could not
appear before the court and was not aware of the court date. It is also
averred that his counsel inadvertently could not note down the next
date. However, the evidence produced by the appellant/respondent
does not establish such a case. The medical history produced by the
appellant to support his contention that he was unwell on 23.01.2015
only states that the appellant was suffering from problems relating to
his teeth and are mostly of the year 2018/2017. The MRI report dated
27.07.2017 also shows no significant abnormalities which would have
required medical intervention to an extent that required the appellant
to miss the court hearing.
17. It is also pertinent to note the conduct of the Appellant before the trial
court, his averments and supporting documents. It seems to us that the
Appellant is intentionally trying to delay the disposal of the case. He
has been proceeded ex-parte three times before the trial court. The
evidence of the Appellant (respondent before the Trial court), was
closed after making observations about the conduct of the Appellant
before the Ld Trial Court. The Appellant was again proceeded Ex-
parte by Shri R.B. Singh Ld ADJ-01 (west)/ Delhi, on 06.09.2013 and
on 03.12.2014, the Appellant, for the third time, was proceeded ex-
parte. From the aforesaid, it is clear, that the appellant has not only
failed to show sufficient and cogent reasons for not being able to
attend the hearing of the suit on the relevant date, what is more is that
the appellant also appears to have time and again deliberately avoided
appearing before the Court. It is also clear that adequate indulgence
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has been shown to him by the trial court. Furthermore, the appellant
has not been able to explain his non-appearance on the date of hearing
on 03.12.2014 or 23.01.2015.
18. As regards the absence of the erstwhile counsel for the appellant
before the trial court on the date of hearing, it is submitted that it was
on account of being outstation. However, again we must stress that no
documentary proof has been provided in this regard. The appellant
has failed to provide any reason as to why the counsel maintained
such a callous and lackadaisical attitude in inspecting the record and
finding out the next date of hearing. Once more, it is also not clear as
to why no one appeared on 03.12.2014.
19. From the reasons provided above, it is certain that there are lacunae in
the explanations provided by the appellant. What appears to us is that
these are merely flimsy excuses and tactics employed by the appellant
to avoid appearing before the court and to drag the proceedings
further. In our opinion, such reasoning does not satisfy the bar of
being sufficient and cogent.
20. It is also relevant to note that the appellant has repeatedly disregarded
the orders of the court regarding costs imposed. Where on
16.04.2014, the Family court had recalled the order dated 06.09.2013
subject to a cost of Rs.5,000/- to be paid in three instalments during
RE stage, only the first instalment was paid by the appellant.
Likewise, the appellant did not pay the Interim Maintenance to the
Respondent Ruchika Gupta and her Minor Son, which amounts to Rs
11,25,000/- as on date of filing of reply. Lastly, there is also non-
compliance of Crl. M.C. No.430/2020, concerning payment of the
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school fees of their son, wherein the appellant has stated that he
would not be able to comply with this order. Notwithstanding the
above, no explanation by the appellant is given for adopting a cavalier
attitude towards the proceeding and showing scant regard to the
orders of this court. In view of the above, the appellant is not entitled
to any indulgence.
21. On account of his conduct, we find that there is no infirmity in the
view taken by the Family Court. The appeal is devoid of merit.
Accordingly, the same is dismissed.
JASMEET SINGH, J
RAJIV SHAKDHER, J
JULY 04, 2022/ „dm‟
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