Telangana High Court

Smt. Gundi Parameshwari vs S. Pavan Kumar on 17 April, 2025

      HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

           CIVIL REVISION PETITION NO.1969 OF 2024

ORDER:

This Civil Revision Petition is filed assailing the order dated

28.05.2024 in I.A.No.66 of 2024 in G.W.O.P.No.16 of 2019 passed by the

learned Judge, Family Court, Ranga Reddy District at L.B.Nagar.

2. Heard N.V.Hanumantha Rao, learned counsel for the petitioners

and Sri Narasimha Rao, learned counsel for respondent.

3. The petitioners herein are the respondents and respondent herein

is petitioner before the Family Court. For convenience, the parties

hereinafter are referred to as they are arrayed before the Family Court.

4. Brief facts of the case are that petitioner and respondent have

obtained divorce on mutual consent vide F.C.O.P.No.83 of 2016, dated

15.02.2017. Petitioner No.1 entered into memorandum of understanding

dated 07.02.2017, as per which petitioner No.1 has to withdraw the

maintenance case and both parties have to exchange respective articles

and have to file an amendment petition in pending F.C.O.P.No.83 of

2016 and convert the same in to mutual consent divorce petition and

accordingly obtained divorce by mutual consent vide order dated

15.02.2017, by filing appropriate application. As per clause No.8 of the

memo of understating, custody of the minor child shall remain with the

petitioner No.1-mother. However, contrary to the said understanding, LNA,J,

respondent herein filed G.W.O.P.No.16 of 2019, before Judge, Family

Court, at L.B.Nagar, Ranga Reddy District and the same was allowed

vide order dated 15.07.2019, declaring the respondent No.1 as natural

guardian of petitioner No.2 and custody of the petitioner No.2 was also

ordered.

5. The Petitioner-wife filed I.A.No.66 of 2024, under Section 5 of

Limitation Act, to condone the delay of 835 days in filing the

application to set aside the ex-parte final orders passed in

G.W.O.P.No.16 of 2019. The trial court vide order dated 28.05.2024

dismissed the same, with an observation that the petitioner has failed to

make out any justifiable grounds for inordinate delay in filing the

application. Aggrieved by the same, the present civil revision petition is

filed.

6. Learned counsel for the petitioner, contended that respondent

have filed G.W.O.P.No.16 of 2019 contrary to the agreed terms as per

memorandum of understanding dated 07.02.2017, wherein, as per

clause No.8, permanent custody of the petitioner-child shall remain

with petitioner-mother. It is further contended that she is not aware of

filing of G.W.O.P.No.16 of 2019 as respondent did not whisper about

the same in the counter filed by him in M.C.No.203 of 2017 (re-numberd

as 193 of 2022). Learned counsel for petitioner further submitted that LNA,J,

she was re-married and stayed at different places, therefore, she has no

knowledge of receiving of notices in G.W.O.P.No.16 of 2019 and came

to know about the ex-parte orders only after receiving notice in

E.P.No.4 of 2023. Since, right of custody of child is involved, it is

appropriate that the matter be decided on merits and prayed to set

aside the impugned order dated 28.05.2024 and allow IA.No.66 of 2024.

7. Per contra, learned counsel for the respondent submitted that

petitioner failed to explain the inordinate delay of 835 days in filing the

application to set aside the orders dated 15.07.2019 in G.W.O.P.No.16 of

2019. Learned counsel for the respondent further submitted that the

averments made in the affidavit in support of the application are false

and contrary to the record and further submitted that notices were

served at two addresses and despite the same, petitioner did not choose

to appear in the G.W.O.P. Therefore, contention of the petitioner that

she came to know about the G.W.O.P. only on receiving of notice in

E.P.No.4 of 2023 is baseless. Therefore, the trial court has rightly

dismissed the application and he finally contended that the revision is

devoid of merits and the same is liable to be dismissed.

8. In support of his contention, learned counsel for respondent

placed reliance on the judgment of Hon'ble Apex Court in Oriental

Aroma Chemical Indistries Limited Vs Gujarat Industrial Development LNA,J,

Corporation and Another 1, Wherein the Hon'ble Apex Court held as

follows:

15. The expression "sufficient cause" employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate..."

9. It is also apt to refer to the judgment of Hon'ble Apex Court in

Union of India and another v. Jahangir Byramji Jeejeebhoy (D) through his LR

(SLP (Civil) No.21096 of 2019 dated 03.04.2024), wherein the Hon'ble

Apex Court by referring the judgment of the same Court in Esha

Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy &

Others [(2013) 12 SCC 649], held that "delay should not be excused as a

matter of generosity. Rendering substantial justice is not to cause prejudice to

the opposite party".

10. In Basawaraj and another v. Special Land Acquisition

Officer 2, the Hon'ble Supreme Court held as under:

"11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be

(2010) 5 SCC 459

2013 (14) SCC 81 LNA,J,

imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .)

12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

xxx

15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

LNA,J,

11. In Postmaster General and others vs. Living Media India

Limited and another 3, Hon'ble Apex Court having considered catena

of decisions, including Pundlik Jalam Patil (dead) by LRs. Vs.

Executive Engineer, Jalgaon Medium Project and another 4, held

as hereunder:

"17....... The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights".

and observed that taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, would not be proper and observed as under:-

"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.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is

(2012) 3 SCC 563

(2008) 17 SC 448 LNA,J,

acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

12. In Government of Maharashtra (Water Resources

Department) rep.by Executive Engineer vs. Borse Brothers

Engineers and Contractors Private Limited 5, Hon'ble Supreme

Court held as under:

"63. ...... In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches."

13. Perusal of the record would disclose that notices in

G.W.O.P.No.16of 2019, were received on two addresses and petitioner

herself signed for herself as well as on behalf of her daughter.

Therefore, the contention of the petitioner that she was not aware of

filing of G.W.O.P. is contrary to the evidence placed on record. The

Family Court has made categorical observation that the contention of

the petitioner that she came to know about the

ex-parte orders only on receiving of the notice in E.P.No.4 of 2023 is

(2021) 6 SCC 460 LNA,J,

false since she has received notices in G.W.O.P.No.16 of 2019

personally.

14. The reasons offered by the petitioner for condonation of delay