Joshi Chiragbhai Jagdishbhai vs Joshi Chhayaben Chiragbhai D/O ...
2021 Latest Caselaw 193 Guj

            C/CA/1047/2019                                               ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CIVIL APPLICATION NO. 1047 of 2019
               In F/FIRST APPEAL NO. 12071 of 2019
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                 JOSHI CHIRAGBHAI JAGDISHBHAI
                             Versus
      JOSHI CHHAYABEN CHIRAGBHAI D/O ARVINDBHAI JOSHI
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Appearance:
DHARITRI PANCHOLI(7502) for the Applicant(s) No. 1
MR VL THAKKAR(2735) for the Respondent(s) No. 1
MR. NIRAV V THAKKAR(9766) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                  Date : 07/01/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Ms. Dharitri Pancholi for the applicant.

2. What is prayed in this application is to condone the delay of 102 days. The said delay has taken place in preferring the Appeal by the applicant appellant who stands aggrieved by the judgment and decree dated 20.11.2018 passed by learned Principal Jude, Family Court, Ahmedabad, in Family Suit No. 576 of 2015, whereby the court below dismissed the prayer for dissolution of marriage.

3. It was submitted in the application to explain the delay is that judgment and decree was passed on 20.11.2018. Certified copy was applied for immediately on 27.11.2018 and the same came to be delivered on 12.12.2018. The appeal was thereafter filed on 8.4.2019, resulting into delay of 102 days.

4. Learned advocate for the applicant submitted on the basis of the averments made on oath in the application that after passing of the impugned judgment, the applicant was under pressure and could not immediately negotiate the situation. It is

C/CA/1047/2019 ORDER

stated that he consulted the advocate and took advice to prefer the appeal. In this process, time was consumed to result into delay to the aforesaid extent.

4.1 Learned advocate Mr. V. L. Thakkar who appeared for the respondent vehemently objected to condone the delay. He submitted that not only the explanation does not inspire credibility, but the applicant husband has not paid the amount of maintenance to the wife. Therefore, he submitted that the delay should not be condoned.

5. Having considered the totality of facts, it could not be said that there is no explanation in respect of the delay that has occurred. The dispute is matrimonial. If one of the parties was under pressure after deliverance of the judgment by the court in such matters, it could be considered a good reason which may result into passage of time before a party decides to litigate further in the higher forum.

5.1 In the present case, it is stated that the applicant took legal advice and in that process of contacting and consulting the lawyer, time was taken. It could not be said that the applicant whiled away time deliberately and the delay has occurred because of negligence on part of the applicant. As regards the other ground about non- payment of maintenance raised by learned advocate for the respondent, the same is part of the merits and could be considered in accordance with law in the main proceedings.

6. As far as the delay is concerned, sufficient cause is made out.

7. The application is allowed by condoning the delay of 102 days. Rule is made absolute (N.V.ANJARIA, J)

(A. S. SUPEHIA, J) C.M. JOSHI