Gujarat High Court
Niteshbhai Jentibhai Kalaniya ... vs State Of Gujarat on 9 December, 2022
Bench: Ilesh J. Vora
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12864 of 2022
==========================================================
NITESHBHAI JENTIBHAI KALANIYA (PARMAR)
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MEET A SHAH(9933) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 09/12/2022
ORAL ORDER
1. By way of this application filed under Articles 226 and 227
of the Constitution of India read with Section 482 of the
Code of Criminal Procedure, 1973, the applicant has
challenged the order of the Additional Sessions Judge,
Kesod, Dist.: Junagadh, passed in Criminal Misc.
Application No.292 of 2022, whereby the Sessions Court
has rejected the prayer of condonation of delay in filing
revision application, against the order dated 10.08.2017
passed by the learned Judicial Magistrate First Class,
Kesod, in Criminal Misc. Application No.207 of 2015.
2. The applicant is husband of respondent no.2, who has
claimed maintenance under Section 125 of the Code of
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
Criminal Procedure, 1973. Before the Trial Court vide its
order dated 10.08.2017, the applicant was appeared and
resisted the application by filing reply at Exh.10 and led
his oral evidence at Exh.26. The learned Trial Court, after
hearing the parties and considering the material on record,
directed the applicant-husband to pay Rs.2,000/- per
month maintenance to wife and Rs.1,000/- per month
maintenance to minor son.
3. In the aforesaid facts, the applicant-husband, after delay of
4 years and 8 months, challenged the order of
maintenance by filing revision application before the
Sessions Court concerned along with the delay condone
application inter alia stating that he was not informed by
his advocate about the order passed by the Court
concerned and it came to his knowledge when he was
served with the summons of the recovery proceedings. The
applicant has raised the contention in his delay
condonation application that the Family Court, Rajkot has
passed the decree of divorce and therefore, he was under
impression that now there is no need to challenge the
maintenance order. He has also raised the contention that
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
the applicant has no other remedy to challenge the order
and therefore, refusing to condone the delay can result in a
meritorious matter being thrown out at the very threshold
and cause of justice being defeated. In such
circumstances, despite having sufficient cause and/or
reasonable ground to condone the delay, the Court
concerned failed to appreciate the reasons for delay and
passed the order rejecting the application which is unjust,
improper and contrary to law.
4. Heard Mr.Meet Shah, learned advocate for the applicant.
5. Learned advocate for the applicant submitted that Court
should take programmatic approach for condonation of
delay, as learned Sessions Court while rejecting the
application failed to appreciate the fact that the Family
Court has dissolved the marriage vide order dated
18.07.2019 and therefore, now there is no liability remains
on the part of the applicant - husband to pay the
maintenance and this ground, which is sufficient cause in
condoning the delay. Thus, the Sessions Court while
rejecting the application ought to have considered the
settled law on the issue of limitation that for the purpose of
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
condoning delay technical approach should be avoided and
sufficient cause should be liberally construed to do
substantial justice.
6. Mr.Shah, learned advocate submitted that non-action on
the part of the applicant - husband was not deliberate and
there was no any negligent on his part for not challenging
the order in a prescribed time limit. He further submitted
that the applicant was not aware about the order of the
Court concerned and as and when he came to know about
the recovery proceedings filed by the wife, he immediately
moved Revision Application along with the delay condone
application, stating therein the reasons for delay. Thus, it
cannot be said that the applicant - husband has not acted
diligently or remained inactive.
7. In view of the aforesaid contentions, Mr.Shah, learned
advocate would submit that the case is made out for
exercising inherent powers of this Court and to secure the
ends of justice, the impugned order deserves to be set
aside.
8. Heard at length Mr.Shah, learned advocate and perused
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
the order impugned, whereby the learned Sessions Court,
Kesod was inclined to grant the prayer for condonation of
delay made by the applicant herein.
9. On factual aspects, it is admitted fact that respondent -
wife and minor son had claimed maintenance by filing
Criminal Misc. Application No.207 of 2015. The Magistrate
Court, Kesod, vide order dated 10.08.2017, directed the
applicant - husband to pay monthly maintenance of
Rs.2,000/- and Rs.1,000/- to wife and minor son
respectively. The applicant had actively participated in the
maintenance proceedings and was aware about the case. It
needs to be noted that in the year 2016, the applicant had
filed suit for divorce which came to be decreed by the
Family Court, Rajkot vide judgment and order dated
18.07.2019. The Family Court, Rajkot while passing the
decree did not think it fit to fix the permanent alimony. On
27.05.2022, the applicant filed an application before the
Trial Court, to dispose of the recovery proceedings on the
ground that the marriage has been dissolved by the
Competent Court. The learned Trial Court by passing
reasoned order, refused to entertain the application.
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
Thereafter, on 08.07.2022, the applicant preferred revision
application challenging the order of maintenance along
with the application seeking condonation of delay in filing
the revision.
10. In view of the peculiar facts of the present case, this Court
is of the opinion that the reasons mentioned in the
application for condonation of delay are not satisfactory. It
is settled law that the applicant must satisfy the Court that
he was prevented by any sufficient cause from prosecuting
his case and unless a satisfactory explanation furnished,
the Court should not allow the application for condonation
of delay. While dealing with the application for condonation
of delay, the Court has to examine whether the delay is
bonafide or was merely a device to cover an ulterior
purpose.
11. In light of the aforesaid principal of law and considering
the background facts as discussed above, it appears that
the applicant had waited for about four years and eight
months and after he failed to get his favourable result
before the Trial Court, he moved a revision application. The
applicant was aware about the passing of the maintenance
R/SCR.A/12864/2022 ORDER DATED: 09/12/2022
order and in the recovery proceedings also, he had
participated and disclosed the decision of divorce. Thus,
prima facie it appears that in order to avoid liability of
maintenance, as a last resort, after delay of four years and
eight months, he approached the Sessions Court
concerned.
12. For the foregoing reasons, the learned Sessions Court
while rejecting the application for condonation of delay,
has rightly dismissed the application by recording proper
findings. Thus, this Court does not find any perversity in
the order and no case is made out for invoking
extraordinary jurisdiction of this Court.
13. As a result, petition fails and is hereby dismissed
accordingly.
(ILESH J. VORA,J)
Rakesh
