Madras High Court
C.Poongothai vs M.Kuppusamy on 10 February, 2021
C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 10.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
C.Poongothai ... Petitioner
-vs-
M.Kuppusamy ... Respondent
Civil Miscellaneous Petition filed under Section 19(3) of Family
Court Act to condone the delay of 814 days in filing the C.M.A. SR.
No.56732 of 2020 against the fair and decretal order passed in I.A. No.1888
of 2015 in O.P. No.3894 of 2008 by the V Additional Family Court,
Chennai dated 18.07.2017.
For Petitioner : Mr.K.Balaji
For Respondent : Ms.Srividhya Aravindan
ORDER
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C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
(Order of the Court was made by T.RAJA, J.)
C.M.P. No.9539 of 2020 in C.M.A. No.SR.56732 of 2020 has been
filed to condone the delay of 814 days in filing the appeal against the fair
and decretal order dated 18.07.2017 passed in I.A.No.1888 of 2015 in
O.P.No.3894 of 2008 by the V Additional Family Court, Chennai.
2. Learned counsel appearing for the petitioner/appellant, assailing
the impugned fair and decretal order, submitted that when the respondent
filed a petition in O.P.No.3894 of 2008 before the Family Court seeking
divorce under Section 13(1)(i) and(i-a) of the Hindu Marriage Act alleging
various cruelties, during the pendency of the said petition for divorce, an
Original Suit in O.S.No.7 of 2010 was filed by the petitioner seeking a
direction to the respondent to pay a sum of Rs.96,000/- as past maintenance
and also for permanent injunction restraining the second defendant, their
men, agents, servants or anyone under them from disbursing the monetary
benefits, such as provident fund, gratuity, salary and other retirement
benefits payable to the respondent, in the event of his retirement till the
payment of the past maintenance. Although the respondent herein filed a
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C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
detailed written statement on 17.8.2010, for the reasons went beyond her
control, the appellant was unable to file the counter affidavit to the divorce
petition pending before the Family Court. However, the Family Court, after
proceeding ex parte against the petitioner, posted the matter for recording of
ex parte evidence on 7.10.2015 and accordingly, on the same date, the
Family Court allowing the petition filed by the respondent for divorce under
Section 13(1)(i) and(i-a) of the Hindu Marriage Act, dissolved the marriage
solemnized on 26.04.1974 between the appellant and the respondent. Since
on the very same day the petitioner also filed I.A.No.1888 of 2015 to set
aside the ex parte decree dated 07.10.2015 in O.P.No.3894 of 2008, the
Family Court passed the conditional order, as follows:-
'i)Since no counter was filed by the respondent, an exparte
order was passed on 07.10.2015. The O.P. for divorce was
filed even in the year 2008. The respondent did not file counter
till now. It shows that the respondent is causing more delay in
the proceedings.
ii)In the above circumstances of this case this petition is
allowed on some conditions. The point is answered
accordingly.
In the result, this petition is allowed on condition::-
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C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
a)that the respondent shall file the counter within
3 days from the date of order.
b)that the respondent shall cross examine P.W.1,
when the petitioner file proof affidavit.'
3. In spite of sufficient opportunities granted to the petitioner, she has
not complied with the conditions imposed in I.A.No.1888 of 2015 in O.P.
No.3894 of 2008 dated 18.09.2017, therefore, the petition was dismissed on
05.12.2017, as against which the petitioner has come to this Court with the
appeal along with the petition to condone the huge and unexplained delay of
814 days. Learned counsel appearing for the petitioner further submitted
that when the respondent has filed the petition for divorce, since the
petitioner was concentrating on the defence of the Original Suit in O.S.No.7
of 2010, inadvertently, the counter affidavit could not be filed, that was put
against the petitioner and finally she was proceeded ex parte. As it is a
matrimonial case, a final chance may be given, he pleaded.
4. We are unable to find any justification or sufficient cause to
condone the huge and long delay of 814 days in filing the appeal. Secondly,
a perusal of the conditional order dated 18.9.2017 clearly shows that when
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C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
the O.P.No.3894 of 2008 was pending for seven long years, the petitioner
did not show any interest to file the counter affidavit. As a matter of fact,
the petitioner ought to have filed the counter affidavit within 90 days.
Further, Order VIII, Rule 5(2) of the Code of Civil Procedure clearly shows
that when the other side has not filed a pleading or reply, it shall be lawful
for the Court to pronounce judgment on the basis of the facts contained in
the plaint. Therefore, the Family Court, Chennai, taking note of the conduct
of the petitioner in not filing the counter affidavit for seven long years in
spite of sufficient opportunities, has not entertained the petition. Therefore,
finding no sufficient cause or justification to condone the huge delay, the
civil miscellaneous petition stands dismissed. Consequently, C.M.A.No.
SR56732 of 2020 stands rejected.
(T.R.,J.) (G.C.S., J.)
10.02.2021
vga
To
The V Additional Family Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
T.RAJA, J.
and
G.CHANDRASEKHARAN, J.
vga
C.M.P.No.9539 of 2020 in C.M.A. SR.No.56732 of 2020
10.02.2021
https://www.mhc.tn.gov.in/judis/
