Madras High Court
Durai vs Aswini @ Hamsaveni on 4 March, 2021
C.R.P.No.410 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 04.03.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(NPD)No.410 of 2021
Durai
S/o.Ranganathan ...Petitioner
Vs
Aswini @ Hamsaveni ...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution
of India, to set aside the order and decreetal order dated 24.02.2017
passed in I.A.No.10 of 2015 in H.M.O.P.No.27 of 2010 on the file of the
Subordinate Court, Arni.
For Petitioner : Mr.S.Ravichandran Sundaresan
ORDER
The present revision petition has been filed challenging the order
dated 24.2.2017 passed in I.A. No.10/15 in HMOP No.27 of 2010 by the
Subordinate Judge, Arni, allowing the petition filed by the petitioner on
condition that the petitioner deposits 75% of the interim maintenance
amount from the date of filing of HMOP No.27 of 2010 till the date of
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dismissal, failing which the petition for condonation would stand
dismissed.
2. It is the case of the petitioner that though HMOP No.27/10 was
listed for the appearance of the petitioner on 18.6.2014, however, the
petitioner could not appear as he was suffering from jaundice and was
taking native treatment over the past nine months. Due to the absence of
the petitioner, HMOP No.27 of 10 was dismissed on 18.6.2014, which
came to the knowledge of the petitioner when he met his counsel, which
resulted in the delay of 155 days in filing the petition. Therefore, it was
prayed that the condonation petition be allowed and the original petition
be restored back to file.
3. The said stand of the petitioner was resisted by the respondent
contending that only for the purpose of evading arrest due to non-
payment of interim maintenance amount, the petitioner had not appeared
before the Court on 18.6.2014 leading to the dismissal of the original
petition. It is the further stand of the respondent that though interim
maintenance at Rs.5,000/- was ordered way back on 24.1.2014 in the
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C.R.P.No.410 of 2021
application in I.A. No.30 of 2013, the petitioner did not pay the amount
resulting in the filing of E.P. No.78 of 2014. Though summons sent in
the said petition was received by the petitioner, however, he did not
appear resulting in a warrant of arrest being issued and to evade the
same, the petitioner absconded resulting in the dismissal of the execution
petition. Thereafter, E.P. No.78 of 2015 was filed once again and in
order to extricate himself from the arrest, the present petition has been
filed seeking restoration of the original petition with a fictitious
explanation as if the petitioner was suffering from jaundice preventing
him from appearing before this Court.
4. Before the court below, the parties were examined and
documents were marked and based on the oral and documentary
evidence, the court below, held that the petitioner, only to absolve
himself from the payment of the interim maintenance had left the original
petition to be dismissed and, thereafter, to prevent himself from being
arrested, has filed the present petition for condonation of delay.
However, taking into consideration the interest of the parties and also the
children of the petitioner and the respondent out of the wedlock and that
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C.R.P.No.410 of 2021
the respondent has only been taking care of the two children and further
interim maintenance having not been paid to the respondent inspite of the
order of the court, allowed the petition on condition that the petitioner
shall deposit 75% of the maintenance amount ordered from the date of
filing of the original petition till the date of dismissal of the petition
within a particular time frame and submit proof thereof before the court,
failing which the petition would stand dismissed. Aggrieved by the said
order, the present revision petition has been preferred.
5. Learned counsel appearing for the petitioner submitted that the
condition to deposit 75% of the interim maintenance amount, as ordered
by the court below, is not only onerous, but it is also contrary to law. It is
the further submission of the learned counsel for the petitioner that
imposition of condition of 75% payment of interim maintenance of is
harsh, unreasonable and further the said order is impermissible while
dealing with an application relating to limitation. It is the further
submission of the learned counsel for the petitioner that the reason for
the petitioner not able to appear before the court due to his illness and
taking treatment has not been appreciated in proper perspective by the
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C.R.P.No.410 of 2021
court below and that the imposition of onerous condition such as the one
causes great hardship and prejudice to the petitioner. Therefore, learned
counsel prays for allowing the present petition.
6. Heard the learned counsel for the petitioner and perused the
materials available on record.
7. The facts as culled out by court below relating to the dispute and
the various petitions filed by either parties and the orders passed thereon
are not in dispute. It is also not in dispute that though interim
maintenance at Rs.5000/- per month has been ordered to be paid by the
petitioner to the respondent, however, till date, the petitioner has not paid
even a pie to the respondent. It is also not in dispute, as found recorded
in the order of the court below, that it is the respondent/wife, who is
taking care of their two children of whom, one is a mentally challenged
child. Further, it is also not in dispute that the petitioner had received the
summons relating to E.P. No.78 of 2014 and, thereafter, did not appear
before the Court due to which warrant for his arrest was also issued,
which could not be executed due to the abscondance of the petitioner.
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C.R.P.No.410 of 2021
8. To counter the said findings recorded by the court below, no
material whatsoever has been placed by the petitioner before this Court.
It is to be pointed out that it is the duty of the lawfully wedded husband
to take care of his wife and children and even in case of any marital
proceedings before the Family Court, it is the duty of the husband to
maintain his wife and children. The concept of maintenance has been
carved out only for the said purpose. Inspite of an order to the petitioner
to pay maintenance, the petitioner, in utter disregard to the said order, has
flouted the said order and had not paid maintenance. In such a backdrop,
the court below, to render substantial justice has thought it fit to impose
the condition of payment of 75% interim maintenance due and payable to
the respondent by the petitioner, for the purpose of condoning the delay,
which order cannot be said to be improper, onerous or unreasonable.
9. The Hon'ble Supreme Court in Maniben Devraj Shah v.
Municipal Corpn. of Brihan Mumbai, (2012 (5) SCC 157) on the
question of limitation and the underlying principle governing the law of
limitation, held as under :-
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C.R.P.No.410 of 2021
“14. We have considered the respective
arguments/submissions and carefully scrutinized
the record. The law of limitation is founded on
public policy. The Limitation Act, 1963 has not
been enacted with the object of destroying the
rights of the parties but to ensure that they
approach the court for vindication of their rights
without unreasonable delay. The idea underlying
the concept of limitation is that every remedy
should remain alive only till the expiry of the
period fixed by the legislature. At the same time,
the courts are empowered to condone the delay
provided that sufficient cause is shown by the
applicant for not availing the remedy within the
prescribed period of limitation.
15. The expression “sufficient cause” used in
Section 5 of the Limitation Act, 1963 and other
statutes is elastic enough to enable the courts to
apply the law in a meaningful manner which
serves the ends of justice. No hard-and-fast rule
has been or can be laid down for deciding the
applications for condonation of delay but over the
years this Court has advocated that a liberal
approach should be adopted in such matters so
that substantive rights of the parties are not
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C.R.P.No.410 of 2021
defeated merely because of delay.
* * * * * * *
23. What needs to be emphasised is that even
though a liberal and justice-oriented approach is
required to be adopted in the exercise of power
under Section 5 of the Limitation Act and other
similar statutes, the courts can neither become
oblivious of the fact that the successful litigant
has acquired certain rights on the basis of the
judgment under challenge and a lot of time is
consumed at various stages of litigation apart
from the cost.
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.”
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C.R.P.No.410 of 2021
10. As succinctly observed by the Hon'ble Apex Court, the law of
limitation was not enacted for the purpose of defeating the rights of the
parties, rather, it has been enacted only to safeguard the rights of the
parties. However, it has been emphasised that even though a liberal and
justice-oriented approach is required to be adopted in the exercise of
power under Section 5 of the Limitation Act the courts can neither
become oblivious of the fact that the successful litigant has acquired
certain rights on the basis of the judgment under challenge and a lot of
time is consumed at various stages of litigation apart from the cost.
Therefore, without there being a sufficient cause shown, delay should not
be condoned.
11. In the case on hand, though it is the claim of the petitioner that
he was suffering from jaundice and was taking native treatment,
however, no material has been placed by the petitioner to prove the said
fact. In the absence of the same, the sufficient cause for the delay having
not been properly explained, the court below could have very dismissed
the petition outright. However, with a view to render substantial justice
to either side, the court below had passed the above conditional order,
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which would enure to the benefit of either side. In the considered opinion
of this Court, the order passed by the court below is neither illegal nor
arbitrary and it is just and reasonable and the same does not warrant any
interference at the hands of this Court.
12. For the reasons aforesaid, this petition is devoid of merits and,
accordingly, the same is dismissed. However, time is extended by four
weeks from the date of receipt of a copy of the order to deposit the
amount of Rs.67,500/-, being the 75% amount towards interim
maintenance as ordered by the Court below.
04.03.2021
Index:Yes/No
Speaking order/Non Speaking order
sbn
To
The Subordinate Judge,
Arni.
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C.R.P.No.410 of 2021
V.BHAVANI SUBBAROYAN, J.
sbn
C.R.P.(NPD)No.410 of 2021
04.03.2021
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