Madhya Pradesh High Court
Upendra Mishra vs Smt. Vibha Mishra on 8 August, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
CRR No.2311/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 8 th OF AUGUST, 2024
CRIMINAL REVISION No.2311 OF 2024
Upendra Mishra
Versus
Smt. Vibha Mishra and another
......................................................................................
Appearance:
Shri Mahesh Prasad Shukla - Advocate for the applicant.
......................................................................................
ORDER
This Criminal Revision at the instance of applicant/husband
under Section 397 read with Section 401 of Code of Criminal
Procedure, 1973 has been filed against the order dated 23.11.2023
passed in MJCR No.358/2023 (Vibha Mishra and another vs.
Upendra Mishra) passed by Principal Judge, Family Court, Waidhan
District Singrauli, whereby in application filed under Section
125(3) of Cr.P.C. by the wife, learned trial Court has directed for
issuance of arrest warrant for recovery of the arrears of the
maintenance allowance.
2. Heard on I.A. No.12429 of 2024 - an application under
Section 5 of the Limitation Act for condonation of delay in
presentation of present criminal revision.
3. This revision is drastically barred by 70 days i.e. almost a
period of two months and ten days.
4. I have gone through the application for condonation of delay.
5. Learned counsel for applicant/husband has submitted that
impugned order was passed on 23.11.2023 and the revision was
required to be filed within 90 days from the date of the order; but
same could not be filed in due time as applicant was not having any
knowledge that revision has to be filed within time. Now proper
legal advice has been given to him. Therefore, he has filed this
revision. The delay caused in filing the revision petition is bona
fide and unintentional. Therefore, it is prayed that the delay caused
in presentation of the revision petition may be condoned.
6. I have heard learned counsel for the applicant at length.
7. On perusal of the impugned order and material available on
record, it is revealed that impugned order was passed in an
application filed by the wife; wherein she had contended that
maintenance allowance of Rs.10,000/- per month is not being paid
to her by the applicant husband as per order dated 17.08.2023
passed by the Court. Therefore, Family Court has directed for
issuance of arrest warrant for recovery. It has further directed that
in case applicant husband makes payment of the arrears he be not
arrested. Order dated 17.08.2023 was passed in MJCR No.142/2023
whereby Court had directed that applicant husband will take care of
the non-applicants wife and child and will keep them well and will
also take care of their health and if deliberately avoids in taking
care of them, he shall pay Rs.10,000/- per month as maintenance
allowance. On perusal of order dated 17.08.2023, it is apparent that
said order was passed in presence of the husband with the consent
of both the parties. Applicant husband has not challenged the
aforesaid order dated 17.08.2023. He has challenged only the order
of issuance of arrest warrant for recovery of the maintenance
allowance passed under Section 125(3) of Cr.P.C.
8. Law with regard to scope and jurisdiction of the Court in the
matter of condonation of delay under Section 5 of the Limitation
Act is well settled by Hon'ble the Apex Court and the various High
Courts.
9. In the case of Ramlal Vs. Rewa Coalfields Ltd.; AIR 1962
SC 361, Hon'ble the Apex Court has held as under:-
"7. In construing Section 5 (of the Limitation Act), it
is relevant to bear in mind two important
considerations. The first consideration is that expiration
of the period of limitation prescribed for making an
appeal gives rise to a right in favour of the decree-
holder to treat the decree as binding between the
parties. In other words, when the period of limitation
prescribed has expired the decree-holder has obtained a
benefit under the law of limitation to treat the decree as
decree-holder by lapse of time should not be light-
heartedly disturbed. The other consideration which
cannot be ignored is that if sufficient cause for
excusing delay is shown discretion is given to the Court
to condone delay and admit the appeal. This discretion
has been deliberately conferred on the Court in order
that judicial power and discretion in that behalf should
be exercised to advance substantial justice."
10. As regards meaning, scope and rationale of the law of
limitation, Hon'ble the Apex Court in the case of Pundlik Jalam
Patil (Dead) by LRs. Vs. Executive Enginner, Jalgaon Medium
Project and another; (2008) 17 SCC 448 has held as under:-
"26. Basically, the laws of limitation are founded on
public policy. In Halsbury's Laws of England, 4th Edn.,
Vol. 28, p. 266, Para 605, the policy of the Limitation
Acts is laid down as follows:
"605. Policy of the Limitation Acts.--The
courts have expressed at least three differing
reasons supporting the existence of statutes of
limitation, namely, (i) that long dormant claims
have more of cruelty than justice in them, (ii) that
a defendant might have lost the evidence to
disprove the stale claim, and (iii) that persons with
good causes of actions should pursue them with
reasonable diligence."
27. Statutes of limitation are sometimes described as
"statutes of peace". An unlimited and perpetual threat
of limitation creates insecurity and uncertainty; some
kind of limitation is essential for public order. This
Court in Rajender Singh v. Santa Singh [(1973) 2 SCC
705] has observed: (SCC p. 712, para 18)
"18. The object of law of limitation is to
prevent disturbance or deprivation of what may
have been acquired in equity and justice by long
enjoyment or what may have been lost by a party's
own inaction, negligence or laches."
28. In Tilokchand Motichand v. H.B. Munshi [(1969) 1
SCC 110 : AIR 1970 SC 898 : (1969) 2 SCR 824] this
Court observed that this principle is based on the
maxim "interest reipublicae ut sit finis litium", that is,
the interest of the State requires that there should be
end to litigation but at the same time laws of limitation
are a means to ensure private justice suppressing fraud
and perjury, quickening diligence and preventing
oppression.
29. It needs no restatement at our hands that the object
for fixing time-limit for litigation is based on public
policy fixing a lifespan for legal remedy for the purpose
of general welfare. They are meant to see that the
parties do not resort to dilatory tactics but avail their
legal remedies promptly. Salmond in his Jurisprudence
states that the laws come to the assistance of the
vigilant and not of the sleepy."
11. While dealing with the scope of jurisdiction under Section 5
of the Limitation Act, as regards condonation of delay, Hon'ble the
Apex Court in the case of Lanka Venkateshwarlu (Dead) by LRs.
Vs. State of Andhra Pradesh and Others; (2011) 4 SCC 363 has
observed as under:-
"19. We have considered the submissions made by the
learned counsel. At the outset, it needs to be stated that
generally speaking, the courts in this country, including
this Court, adopt a liberal approach in considering the
application for condonation of delay on the ground of
sufficient cause under Section 5 of the Limitation Act.
This principle is well settled and has been set out
succinctly in Collector (L.A.) v. Katiji [(1987) 2 SCC
107] .
xxx ... xxx..
23. The concepts of liberal approach and
reasonableness in exercise of the discretion by the
courts in condoning delay, have been again stated by
this Court in Balwant Singh [(2010) 8 SCC 685 : (2010)
3 SCC (Civ) 537] , as follows: (SCC p. 696, paras 25-
26)
"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 (sic a lis). 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."
xxx... xxx..
28. We are at a loss to fathom any logic or rationale,
which could have impelled the High Court to condone
the delay after holding the same to be unjustifiable. The
concepts such as "liberal approach", "justice oriented
approach", "substantial justice" cannot be employed to
jettison the substantial law of limitation. Especially, in
cases where the court concludes that there is no
justification for the delay. In our opinion, the approach
adopted by the High Court tends to show the absence of
judicial balance and restraint, which a Judge is required
to maintain whilst adjudicating any lis between the
parties. We are rather pained to notice that in this case,
not being satisfied with the use of mere intemperate
language, the High Court resorted to blatant sarcasms.
29. The use of unduly strong intemperate or extravagant
language in a judgment has been repeatedly
disapproved by this Court in a number of cases. Whilst
considering applications for condonation of delay under
Section 5 of the Limitation Act, the courts do not enjoy
unlimited and unbridled discretionary powers. All
discretionary powers, especially judicial powers, have
to be exercised within reasonable bounds, known to the
law. The discretion has to be exercised in a systematic
manner informed by reason. Whims or fancies;
prejudices or predilections cannot and should not form
the basis of exercising discretionary powers."
12. Hon'ble the Apex Court in the case of Maniben Devraj Shah
Vs. Municipal Corporation of Brihan, Mumbai; (2012) 5 SCC
157 has held in para 24 as under:-
"24. What colour the expression "sufficient cause"
would get in the factual matrix of a given case would
largely depend on bona fide nature of the explanation.
If the court finds that there has been no negligence on
the part of the applicant and the cause shown for the
delay does not lack bona fides, then it may condone the
delay. If, on the other hand, the explanation given by
the applicant is found to be concocted or he is
thoroughly negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion not to
condone the delay."
13. Hon'ble the Apex Court in Chief Post Master General and
Ors. Vs. Living Media India Ltd. and Another; AIR 2012 SC
1506 has held that unless reasonable and acceptable explanation of
delay and sufficient cause is shown, the application need not be
accepted.
14. Hon'ble the Apex Court in University of Delhi Vs. Union of
India and Others; (2020) 13 SCC 745 has held that in the matter
of condonation of delay and laches, the well accepted position is
also that the accrued right of the opposite party cannot be dealt with
lightly. The condonation of delay is an exception and should be
used where lapse of time is not attributable to any laches or
negligence of the appellant.
15. In the case of State of M.P. and Others Vs. M/S Perfect
Sales, Vineet Market, Jayendraganj, Lashker, Gwalior; AIR
2015 MP 161, Bench at Gwalior of this Court has held that the
appellant slept over the matter for 296 days and did nothing to
assail the judgment of the subordinate Court. It shows careless
attitude on the part of the appellant and there being no sufficient
cause shown, the delay cannot be condoned.
16. In the case in hand, the delay in presentation of the revision
petition is 70 days i.e. almost two months and ten days and no
reasonable explanation with sufficient cause has been given. The
entire explanation given by the applicant depicts a casual approach,
unlawful mind of law of limitation despite being aware of position
of law. That apart, when there is such a long delay and there is no
proper explanation, laches would also come into play while noticing
as to the manner in which a party has proceeded before filing a
revision petition.
17. In view of the aforesaid authoritative pronouncement of law
as regards object, scope, extent, limitation and the discretionary
power to be exercised under Section 5 of the Limitation Act laid
down by Hon'ble the Apex Court, this Court is of the view that the
delay of 70 days (two months and ten days) caused in presentation
the revision petition by the applicant is hopelessly barred by
limitation as neither sufficient cause is shown in the application
seeking condonation of delay nor the same is found to be the
satisfaction of this Court.
18. It is settled position of law that under Section 125 of Cr.P.C.
(new Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023) any
person having sufficient means if neglects or refuses to maintain his
wife, unable to maintain herself or his legitimate or illegitimate
minor child, they may claim for monthly allowance for their
maintenance and Magistrate may direct such person to pay
maintenance allowance at such monthly rate as Magistrate may
thinks fit.
19. In the case in hand, the original order was passed in presence
of both the parties and with the consent of the husband. As
applicant-husband has failed to comply with the original order
dated 17.08.2023 wife and minor child, who are non-applicants, are
entitled to monthly maintenance allowance of Rs.10,000/- per
month. As applicant-husband/father has failed to comply with the
order and conditions mentioned in the order dated 17.08.2023,
learned Magistrate has not committed any error in issuing a warrant
for levying the amount due on the basis of application filed by the
wife and minor child. Therefore, this petition is liable to be
dismissed not only on the ground of delay in filing this revision but
also on merit.
20. Accordingly, I.A. No.12429 of 2024 - application under
Section 5 of Limitation Act seeking condonation of delay as well as
on merit is hereby dismissed. Consequently, this Criminal Revision
is also dismissed. No order as to costs.
(DINESH KUMAR PALIWAL)
JUDGE
b
by BIJU BABY
Date: 2024.08.21
10:45:17 +05'30'
