Orissa High Court
Purnima Khamari vs Tapas Kumar Pandia on 1 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.46 of 2020
Purnima Khamari .... ..... Appellant
Mr. R.N. Rout, Adv.
-Versus-
Tapas Kumar Pandia ............ Respondent
Mr. S.K. Dwivedy, Adv.
CORAM:
JUSTICE S. TALAPATRA
JUSTICE SAVITRI RATHO
ORDER
01.03.2023
I.A. No.56 of 2020
Order No.
16. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Heard Mr. R.N. Rout, learned counsel appearing for the
applicant and also Mr. S.K. Dwivedy, learned counsel appearing for
the Opposite Party.
3. This is an application under Section 5 of the Limitation Act,
1963 for condoning the delay of 1581 days, as calculated by the
Stamp Reporter, in filing the appeal under Section 19(1) of the Family
Courts Act, 1984 from the Judgment dated 06.09.2017 delivered in
Civil Proceeding No.408 of 2016 by the Judge, Family Court,
Balasore.
4. Following causes have been assigned for purpose of
condoning the delay.
"4. That, it is humbly submitted here that the
impugned ex-parte judgment under Annexure-1
was passed on dtd.06.09.2017 and the present
MATA was required to be filed within thirty days
i.e. on or before dtd.06.10.2017. But due to lack of
funds arising out of the fact that the petitioner has
no source of income being totally dependent on her
parents for her survival and mental distress arising
out of the aforesaid matrimonial dispute arising
between the parties, the present MATA has been
filed after a delay of 919 days i.e. on dtd.
12.03.2020. It is humbly prayed that unless the
aforesaid delay of 919 days in filing the present
MATA is condoned the petitioner/appellant being a
poor helpless destitute lady shall be highly
prejudiced." [Emphasis added]
5. The Opposite Party having traversed the above averments, has
filed the objection and contended that the averments at Paragraph-4
cannot be believed in as much as in the matrimonial suit seeking
divorce as instituted by the appellant being CP No.37 of 2018, the
applicant has appeared before the Judge, Family Court, Balasore. At
the instance of the appellant, the said suit has been transferred to the
court of the Judge, Family Court, Bhadrak. On transfer, the said case
has been reregistered as CP No.285 of 2018.
6. In Para-2 of the said reply, the Opposite Party has
categorically stated that the applicant did not appear in the civil
proceeding No.408 of 2016 which was for restitution of conjugal
rights, in spite of service of summons and for that reason, the suit had
proceeded ex parte against the applicant vide the order dated
22.12.2016. In the ex parte proceeding, the final order/Judgment has
been passed on 06.09.2017. The said Judgment/order has been
challenged in the appeal.
7. There is no explanation whatsoever for explaining the
inordinate delay besides the financial distress. In the meanwhile,
based on the decree of restitution of conjugal rights, the respondent
has filed the suit for dissolution of marriage.
8. Having considered the submission of the learned counsel for
the parties, we are constrained to observe that there is no adequate
cause for condoning the delay.
9. Apart that, the respondent has instituted a matrimonial suit
seeking divorce.
10. Hence, the appellant may raise all her defences in the said suit
and as such, the applicant may not suffer any prejudice.
11. Having observed thus, we dismiss this application for
condonation of delay.
12. However, in the circumstances of the case, we shall not
impose any costs.
(S. Talapatra)
Judge
(Savitri Ratho)
Judge
MATA No.46 of 2020.
Order No.
17. 1. In view of the order passed today in I.A. No.56 of 2020, this
appeal stands dismissed being barred by limitation.
(S. Talapatra)
Judge
(Savitri Ratho)
Rati Ranjan Judge
