Gujarat High Court
Sonal Aashish Madhapariya vs Aashish Harjibhai Madhapariya on 18 January, 2021
Bench: R.M.Chhaya, R.P.Dholaria
C/CA/3064/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 3064 of 2020
In
F/FIRST APPEAL NO. 27985 of 2020
==========================================================
SONAL AASHISH MADHAPARIYA
Versus
AASHISH HARJIBHAI MADHAPARIYA
==========================================================
Appearance:
MR BJ TRIVEDI(921) for the Applicant(s) No. 1
MR JT TRIVEDI(931) for the Applicant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Applicant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 1
MR RAHUL K DAVE(3978) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 18/01/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. B.J. Trivedi, learned advocate for
the applicant and Mr. K.R. Dave, learned
advocate for the opponent.
2. Rule. Mr. K.R. Dave, learned advocate waives
service of Rule on behalf of the opponent.
3. By way of this application, the applicant has
prayed for condonation of delay of 471 days
in filing the First Appeal challenging the
order dated 28.5.2019 passed below Exh.11 by
the learned Family Court Judge, BhujKachchh
in Family Suit no.84 of 2018, whereby the
C/CA/3064/2020 ORDER
said Suit came to be dismissed as barred by
the principles of res judicata.
4. Mr. B.J. Trivedi, learned advocate for the
applicant has taken this Court through the
factual matrix arising out of this
application and relying upon the contentions
raised in the application, has submitted that
the applicant had filed Suit for divorce
being Marriage Suit no.17 of 2016 before the
learned Principal Civil Judge (S.D.), Bhuj,
which came to be transferred to the Family
Court at Bhuj and renumbered as Family Suit
no.92 of 2016. Mr. Trivedi invited attention
of this Court to Exh.20 - purshis filed in
the said Suit, whereby Marriage Suit no.17 of
2016 came to be withdrawn on a compromise
arrived at between the parties. Mr. Trivedi
contended that thereafter, the compromise did
not work and therefore, a subsequent Suit
being Family Suit no.84 of 2018 came to be
filed, in which, an application below Exh.11
was filed by the opponent on the ground that
the Suit deserves to be dismissed on the
ground of res judicata. The facts reveal that
another Suit was filed by the opponent being
Family Suit no.77 of 2016 for restitution of
conjugal rights, which came to be decreed on
the same day i.e. on 28.5.2019 before the
same Court. Record indicates that the
applicant has filed Misc. Civil Application
C/CA/3064/2020 ORDER
no.19 of 2019 and the same was dismissed on
6.7.2019. The said order passed in Misc.
Civil Application no.19 of 2019 was
challenged by the applicant by way of filing
Civil Revision Application no.397 of 2019
before this Court, which is still pending.
The applicant has also challenged the
judgment and decree dated 28.5.2019 passed in
Family Suit no.77 of 2016 being First Appeal
no.3359 of 2019, which came to be allowed
vide order dated 2.3.2020. Mr. Trivedi
further contended that the applicant pointed
out to this Court that the opponent herein
has already moved a Court in United Kingdom
seeking divorce. The affidavitinreply was
filed by the opponent in First Appeal no.3359
of 2019, wherein the facts stated show that
the opponent has scant regard for the truth.
It was contended on behalf of the applicant
that as the First Appeal filed against the
judgment and decree passed in Family Suit
no.77 of 2016 (for restitution of conjugal
rights) came to be allowed as the divorce
proceedings were pending before the Court at
United Kingdom, the applicant had preferred
to wait for dismissal of the said appeal. It
was further contended that the applicant has
already been in United Kingdom and due to
pandemic Corona Virus Covid19, she is not in
a position to travel back to India. Even
father of the applicant who has been her
C/CA/3064/2020 ORDER
power of attorney is stuck in United Kingdom
because of the pandemic. It was contended
that as the Court in United Kingdom has
agreed to proceed and hear the matter, which
is not otherwise permissible in law, the
applicant decided to forthwith file the
present appeal and as the marriage between
the applicant and the opponent has taken
place at Bhuj on 1.1.2009 as per Hindu rites
and rituals and the same is registered at
Bhuj. Mr. Trivedi further contended that in
matrimonial disputes, the doctrine of res
judicata is not applicable as whenever there
is marital discord, new questions would arise
and if a Suit is instituted for getting
requisite relief, such a Suit cannot be
dismissed as a reason of doctrine of res
judicata. It was contended that in the
earlier Suit, nothing was decided on merits
and the same came to be withdrawn in terms of
the purshis submitted by the applicant.
According to Mr. Trivedi, the doctrine of
res judicata would be attracted and be
applicable only if the issues raised therein
were decided. It was contended that thus, the
learned Principal Judge, Family Court has
resorted to a shortcut to put an end to what
may have been a strenuous exercise. It was
also contended that from the conduct of the
applicant, it can be visualized that the
decree in the other Suit being Family Suit
C/CA/3064/2020 ORDER
no.77 of 2016 came to be passed on 28.5.2019
was promptly challenged by the applicant
before this Court and therefore, it cannot be
said that she was sleeping over her rights.
It was contended that the applicant was
hopeful that once it is found that the
opponent has been taking shelter of falsehood
and once the same is exposed, he would settle
the matter amicably and therefore also, the
impugned order was not challenged within the
period of limitation. It was contended that
thus, the opponent has again sought to take
shortcut by approaching the Court in United
Kingdom, where also the applicant is
resisting the said Suit on merits including
on the ground of legal or territorial
jurisdiction. It was contended that the delay
is not due to negligence or inaction on the
part of the applicant. On the aforesaid
grounds, relying upon the judgment of the
Apex Court in the cases of State of M.P. Vs.
S.S. Akolkar, (1996) 2 SCC 568, M/s. Esbee
Inds. Corporation Vs. M/s. Bulk Systems Int.
Limited, 2001 (4) Supreme 47002 and N.
Balakrishnan Vs. M. Krishnamurthy, (1998) 7
SCC 123, it was contended by Mr. Trivedi that
sufficient cause is shown and the delay be
condoned. It was contended that the
explanation given by the applicant does not
smack of malafides or dilatory strategy and
therefore, the delay deserves to be condoned
C/CA/3064/2020 ORDER
and the appeal deserves to be decided on
merits to do complete and substantial
justice. It was thus contended by Mr. Trivedi
that the present application may be allowed.
5. Mr. K.R. Dave, learned advocate for the
opponent has relied upon the affidavitin
reply filed in this application. Relying upon
the affidavitinreply filed by the opponent,
it was contended that though ordinarily
approach of the Court in the matter of
condonation of delay is very liberal, a
person cannot approach the Court at his/her
sweet will after sitting tight over the
matter and cannot pray for condonation of
delay. Relying upon the judgment of the
Division Bench of this Court in First Appeal
no.3359 of 2019, it was contended by the
opponent that the applicant could have very
well filed the present appeal at the time of
filing of the earlier appeal. However, the
applicant has remained silent over the issue
for decision of the earlier appeal and
therefore, the applicant now cannot contend
that she could not file the appeal because
she was residing in United Kingdom. It was
contended that the delay is deliberate. It
was also contended that the applicant also
filed an application for review in the case
of restitution of conjugal rights and as per
advise, has taken suitable actions and
C/CA/3064/2020 ORDER
therefore, delay under the shelter of Covid
19 is not tenable. It was also contended that
in the earlier First Appeal, the opponent had
declared that he has filed a divorce petition
in the Court of United Kingdom by an
affidavit dated 29.2.2020 which is produced
by the applicant with the memo of appeal. It
was therefore contended that when the First
Appeal was decided by this Court, the
applicant was aware that the proceedings for
divorce in the Court of United Kingdom were
pending and according to the opponent, from
February, 2020 to December, 2020, the
applicant has remained silent. It was
contended that the Court at United Kingdom is
likely to take up the proceedings for final
orders and in order to stall the proceedings
from the Court at United Kingdom, the
applicant preferred this application and the
same amounts to misuse of process of this
Court and therefore, it is a clear case of
harassment to other parties of such ground.
It was therefore contended that the behaviour
of the applicant cannot be tolerated on the
ground of showing favour.
6. It was also contended that in the withdrawal
purshis filed in Suit no.111 of 2015, it was
contended by the applicant that she is
resident of London and it is not possible for
her to come to the Court at Bhuj and that she
C/CA/3064/2020 ORDER
claims to be the citizen of United Kingdom.
It was also contended that as the Court at
United Kingdom is already seized of the same
issue to revive the case that has already
been abandoned by the applicant is not
justified. It was contended that the
behaviour of the applicant in the Courts in
India is also required to be considered. It
was contended that the opponent had filed
Marriage Suit no.77 of 2016 before the Family
Court at Bhuj, wherein the present applicant
had appeared and filed affidavit of evidence
and on 10.8.2018, the crossexamination was
in progress. However, the applicant suddenly
disappeared and avoided the process of the
Court. It was contended that the behaviour of
the applicant demonstrates that she has no
regards for the law or judiciary in India and
that she prefers to use at her sweet will as
and when she desires and it was contended
that such approach is required to be
deprecated in no uncertain terms. It was
further contended that the explanation of
delay under the guise of Covid19 would only
be from March, 2020 and there is no
explanation from 28.5.2019 to March, 2020 and
therefore, the delay cannot be condoned in
the present case. It was also contended that
it is a settled position that the merits and
demerits of the appeal cannot be considered
at the time of deciding an application for
C/CA/3064/2020 ORDER
condonation of delay and therefore, the
issues and questions raised by the applicant
regarding the merits of the case cannot be
gone into at this juncture. It is submitted
that the contentions in the application are
adverbatim barring one sentence about the
pending litigation and therefore, the
application would definitely be hit by Order
23 Rule 1 of the Code of Civil Procedure,
1908 if not Section 11 of the Code of Civil
Procedure, 1908 and therefore, it was
contended that the decision based on
incorrect provisions of law would not be a
nullity in the eye of law. It was also
contended that the applicant has affirmed the
application in United Kingdom and such
exercise could have been undertaken even
earlier and therefore, in such circumstances,
explanation of delay is not just and proper.
It is alleged that by adverting to ornamental
language and selfcreated circumstances, the
applicant has tried to throw a picture about
the opponent. However, on such submissions,
the applicant is not entitled for any relief.
It was also contended that the decision was
rendered in two matters by the same Court on
the same day. However, the applicant has
chosen to challenge only one order and
therefore, the applicant accepted the order
which is challenged in the present appeal. It
is alleged that after coming out of slumber
C/CA/3064/2020 ORDER
which is deliberate one, she cannot claim
equity for that. It was contended by the
opponent that the applicant kept herself away
from the Court of India because she did not
want to come to India frequently. However, if
the petition for her divorce is revived, she
will have to come to India and will have to
surrender to the jurisdiction of the Court in
India. It was contended that total topsy
turvy statement is made on behalf of the
applicant. It was further contended that such
conduct of the applicant would make it clear
that the applicant wants to avoid the process
of Court under any pretext. It was contended
that the applicant first of all filed the
proceedings and allowed it to be stopped and
when the opponent filed the proceedings, the
applicant chose to run away in middle of the
day. It was also contended that withdrawal of
the case by the applicant was on advise and a
ground of disturbance in the education of the
child which still subsists. It was also
contended that however, now the applicant
wants to get it revived as now the Court of
United Kingdom is likely to pass a decree and
the applicant wants to avoid the proceedings
in United Kingdom on the premises that her
divorce petition is pending in the Court of
India and the same is nothing but malafide in
law. It was contended that when there is
identical proceedings before the Court to
C/CA/3064/2020 ORDER
revive another proceedings after delay of
more than 450 days, would amount to give seal
to such improper behaviour. It was also
contended that it is also equally important
to consider that the applicant was
represented by the same learned advocate in
all the matters and therefore, to state that
she was not aware about her legal right is
nothing but a misleading and incorrect
statement. On the aforesaid grounds, it was
contended that the application is required to
be dismissed with heavy and exemplary costs
so that no one can think to take the Court
proceedings for a ride at sweet will. On the
aforesaid contentions raised in the
affidavitinreply, it was contended by Mr.
Dave that the application deserves to be
dismissed.
7. No other and/or further submissions,
averments and/or contentions have been raised
by the learned advocates appearing for the
respective parties.
8. We have considered the contentions raised in
the application as well as in the affidavit
inreply filed in this application. It is a
matter of fact that the Suit filed by the
opponent being Family Suit no.77 of 2016
under Section 9 of the Hindu Marriage Act,
1955 for restitution of conjugal rights came
C/CA/3064/2020 ORDER
to be decreed on 28.5.2019, against which,
the applicant had approached this Court by
way of filing an appeal being First Appeal
no.3359 of 2019, which came to be allowed
vide judgment and order dated 2.3.2020. It is
also a matter of fact that the marriage
between the parties came to be solemnized as
per the rites and rituals of parties on
1.1.2009 at Village Madhapur in Kutch and
from the wedlock, daughter named Vedancy is
born which, as per the record, is in custody
of the present applicant. The Division Bench
of this Court, after considering the evidence
on record, allowed the appeal and the
impugned judgment and decree dated 28.5.2019
passed by the learned Principal Judge, Family
Court, BhujKachchh in Family Suit no.77 of
2016 came to be quashed and set aside which
as on date has become final. It is also a
matter of fact that by passing a purshis, the
Suit for divorce came to be withdrawn by the
present applicant on the ground that the
daughter is staying and studying in London
and she is not in a position to come to Bhuj
Court to give deposition. The record
indicates that the daughter was produced in
Lok Adalat and thereafter, the judgment and
decree came to be passed. While considering
the present application for condonation of
delay of 471 days that too, in a matrimonial
matter, a liberal approach is to be taken. It
C/CA/3064/2020 ORDER
is a matter of fact that the applicant stays
in London and has to rely upon her father
even for filing a case before the Court in
India. It has been clearly stated in the
application that father who is a power of
attorney is also stuck in United Kingdom and
therefore, ultimately the appeal was
presented before this Court on 16.12.2020
before this Court. It is a matter of fact
that since 17.3.2020 because of Covid19,
working of Courts has been paralyzed and
though virtual hearing is being conducted,
the litigants faced difficulties even in
filing their cases. Even considering the
order passed by the Hon'ble Apex Court in Suo
Motu Writ Petition no.3 of 2020, the period
of limitation under the general as well as
special law shall have been extended from
time to time. Considering the fact that the
judgment impugned in this appeal is dated
28.5.2019 and that against the judgment and
order passed in Family Suit no.77 of 2016,
the applicant did approach this Court within
the period of limitation and filed First
Appeal no.3359 of 2019. In facts of this case
and the contentions raised by the parties, it
cannot be said that the delay is because of
lethargy and/or any malafide on the part of
the applicant. While considering the
application for condonation of delay, it also
deserves to be considered that the applicant
C/CA/3064/2020 ORDER
is residing at United Kingdom and even for
challenging the impugned judgment, she had to
face several difficulties, which are
exhibited and enumerated in the application.
Considering the binding decisions of the
Hon'ble Apex Court cited at bar, the
explanation rendered by the applicant
constitute sufficient cause on it being
construed liberary as held by the Hon'ble
Apex Court in the case of Collector Land
Acquisition, Anantnag & Anr. Vs. Mst. Katiji
& Ors., AIR 1987 SC 1353, wherein it is
observed as under:
"3. The legislature has conferred the
power to condone delay by enacting
Section 51 of the Indian Limitation
Act of 1963 in order to enable the
Courts to do substantial justice to
parties by disposing of matters on
'merits'. The expression "sufficient
cause" employed by the legislature is
adequately elastic to enable the
courts to apply the law in a
meaningful manner which subserves the
ends of justice that being the life
purpose for the existence of the
institution of Courts. It is common
knowledge that this Court has been
making a justifiably liberal approach
in matters instituted in this Court.
But the message does not appear to
have percolated down to all the other
Courts in the hierarchy. And such a
liberal approach is adopted on
principle as it is realized that:
1. Ordinarily a litigant does not
stand to benefit by lodging an appeal
C/CA/3064/2020 ORDER
late.
2. Refusing to condone delay can
result in a meritorious matter being
thrown out at the very threshold and
cause of justice being defeated. As
against this when delay is condoned
the highest that can happen is that a
cause would be decided on merits after
hearing the parties.
3. Every day's delay must be
explained" does not mean that a
pedantic approach should be made. Why
not every hour's delay, every second's
delay? The doctrine must be applied in
a rational common sense pragmatic
manner.
4. When substantial justice and
technical considerations are pitted
against each other, cause of
substantial justice deserves to be
preferred for the other side cannot
claim to have vested right in
injustice being done because of a non
deliberate delay.
5. There is no presumption that delay
is occasioned deliberately, or on
account of culpable negligence, or on
account of mala fides. A litigant does
not stand to benefit by resorting to
delay. In fact he runs a serious risk.
6. It must be grasped that judiciary
is respected not on account of its
power to legalize injustice on
technical grounds but because it is
capable of removing injustice and is
expected to do so.
Making a justiceoriented approach
from this perspective, there was
sufficient cause for condoning the
delay in the institution of the
C/CA/3064/2020 ORDER
appeal. The fact that it was the
'State' which was seeking condonation
and not a private party was altogether
irrelevant. The doctrine of equality
before law demands that all litigants,
including the State as a litigant, are
accorded the same treatment and the
law is administered in an even handed
manner. There is no warrant for
according a stepmotherly treatment
when the 'State' is the applicant
praying for condonation of delay. In
fact experience shows that on account
of an impersonal machinary (no one in
charge of the matter is directly hit
or hurt by the judgment sought to be
subjected to appeal) and the inherited
bureaucratic methodology imbued with
the notemaking, file pushing, and
passingonthebuck ethos, delay on
its part is less difficult to
understand though more difficult to
approve. In any event, the State which
represents the collective cause of the
community, does not deserve a
litigantnongrata status. The Courts
therefore have to be informed with the
spirit and philosophy of the provision
in the course of the interpretation of
the expression "sufficient cause". So
also the same approach has to be
evidenced in its application to
matters at hand with the end in view
to do even handed justice on merits in
preference to the approach which
scuttles a decision on merits. Turning
to the facts of the matter giving rise
to the present appeal, we are
satisfied that sufficient cause exists
for the delay. The order of the High
Court dismissing the appeal before it
as time barred, is therefore. set
aside. Delay is condoned. And the
matter is remitted to the High Court.
The High Court will now dispose of the
appeal on merits after affording
C/CA/3064/2020 ORDER
reasonable opportunity of hearing to
both the sides."
9. Similarly, the Hon'ble Apex Court in the case
of Popat and Kotecha Property Vs. State Bank
of India Staff Association, (2005) 7 SCC 510
has held as under:
"7. The period of limitation is
founded on public policy, its aim
being to secure the quiet of the
community, to suppress fraud and
perjury, to quicken diligence and to
prevent oppression. The statute i.e.
Limitation Act is founded on the most
salutary principle of general and
public policy and incorporates a
principle of great benefit to the
community. It has, with great
propriety, been termed a statute of
repose, peace and justice. The statute
discourages litigation by burying in
one common receptacle all the
accumulations of past times which are
unexplained and have not from lapse of
time become inexplicable. It has been
said by John Voet, with singular
felicity, that controversies are
limited to a fixed period of time,
lest they should be immortal while men
are mortal.
9. Rules of limitation are not meant
to destroy the rights of parties. They
are meant to see that parties do not
resort to dilatory tactics, but seek
their remedy promptly. The object of
providing a legal remedy is to repair
the damage caused by reason of legal
injury. The law of limitation fixes a
lifespan for such legal remedy for
the redress of the legal injury so
suffered. Time is precious and wasted
C/CA/3064/2020 ORDER
time would never revisit. During the
efflux of time, newer causes would
sprout up necessitating newer persons
to seek legal remedy by approaching
the courts. So, a lifespan must be
fixed for each remedy. Unending period
for launching the remedy may lead to
unending uncertainty and consequential
anarchy. The law of limitation is thus
founded on public policy. It is
enshrined in the maxim interest
reipublicae ut sit finis litium (it is
for the general welfare that a period
be put to litigation). The idea is
that every legal remedy must be kept
alive for legislatively fixed period
of time."
10. Considering the objections raised by Mr.
Dave, it cannot be said that the action of
the applicant in filing the present appeal
smacks of any malafide, but on the contrary,
the applicant, as a helpless lady because of
her own circumstances could not proceed
further with the earlier Suit and as she was
compelled under the personal circumstances to
withdraw the same, should be given a chance
to put forward her case on merits and in
facts of this case therefore, the delay
deserves to be condoned. Only because the
applicant preferred an appeal against the
order passed on the Suit for restitution of
conjugal rights and though the order was
passed on the same day by the same Court, it
cannot be said that the applicant has
approached this Court at her sweet will and
was sitting tight over the issue. Following
C/CA/3064/2020 ORDER
the ratio laid down by the Hon'ble Apex Court
in the abovereferred cases, in facts of this
case and as per the grounds raised in the
appeal, delay deserves to be condoned. The
explanation rendered by the applicant, in
opinion of this Court, constitutes sufficient
cause without any dilatory tactics or
lethargy and therefore, this Court is of the
opinion that the applicant deserves to be
given a chance to redress her grievance on
merits by condoning delay of 471 days. What
constitutes sufficient cause varies from
facts of each case.
11. Resultantly, delay of 471 days is condoned
and the application is allowed. Rule is made
absolute. However, there shall be no order as
to costs.
(R.M.CHHAYA, J)
(R.P.DHOLARIA, J)
MRP
