Sumit Dobhal vs Preeti Dobhal
2022 Latest Caselaw 3651 UK

  HIGH COURT OF UTTARAKHAND AT NAINITAL
            Criminal Revision No. 683 of 2022


Sumit Dobhal                                        ...Revisionist

                              Versus

Preeti Dobhal                                     ...Respondent

Present:-
            Mr. Karan Anand, Advocate for the revisionist.


Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the order

dated 20.09.2022, passed in Misc. Case No. 54 of 2022,

Sumit Dobhal Vs. Preeti Dobhal, by the court of Addition

Judge, Family Court, Rishikesh, Dehradun. By it, an

application under Section 5 of the Limitation Act, 1963 ("the

Act") has been rejected.

2. Heard learned counsel for the revisionist and

perused the record.

3. The record reveals that the respondent filed an

application under Section 125 of the Code of Criminal

Procedure, 1973 ("the Code") seeking maintenance from the

revisionist, which is the basis of the Misc. Case No. 39 of

2019, Smt. Preeti Dobhal Vs. Sumit Dobhal, in the court of

Additional Judge, Family Court, Rishikesh, District Dehradun

("the case"). In the case despite service, the revisionist did not

appear, therefore, the case proceeded ex parte against the

revisionist on 31.07.2019. The case was decided on

03.10.2019. The application filed by the respondent under

Section 125 of the Code was allowed. The revisionist has been

directed to pay Rs.5,000/- per month as maintenance.

4. It is a case of the revisionist that he received

notice of proceeding of recovery of arrears of maintenance in

the month of April, 2022. He enquired about the case and

filed an application under Section 126 (2) of the Code. Since

it was delayed, an application under Section 5 of the Act has

also been filed. It has been rejected by the impugned order.

5. Learned counsel for the revisionist would submit

that a party should be given an opportunity to contest the

case. It is in the interest of both the parties that the matter

gets disposal on merits. The application for condonation of

delay should be given a liberal look. There should not be

any pedantic approach, while deciding such application. The

party may not be asked to explain day-to-day delay. But, the

court below observed that the day-to-day delay has not been

explained and rejected the application filed under Section 5

of the Act by the revisionist. It, according to the learned

counsel for the revisionist is not in accordance with law.

Therefore, the impugned order deserves to be set aside.

6. It is true that the court should be much lenient in

condoning the delay. But then, the law of limitation has also

to be respected. The leniency should not go to the extent, so

as to make the law of limitation redundant. On mere

assertions delay should not be condoned. Need not be

reiterated at this stage, the approach of the court should not

be pedantic. A party may not and should not be required to

file day-to-day explanation. Broader explanation of coming

late in the court may be considered.

7. The judgment dated 03.10.2019 passed in the

case is before the Court. In para 3 of it, the court had

recorded that despite service, the revisionist did not appear

in the case. Resultantly, on 31.07.2019, the case proceeded

ex parte against the revisionist.

8. Learned counsel for the revisionist could not

show one reason mentioned in his application under Section

126 (2) of the Code or in his application under Section 5 of

the Act, as to why, he did not appear on 31.07.2019 in the

case? Did he receive notice in that case? If not, did he get

information after inspection of the record of the case? As to

how the court found service sufficient on him? Is it the case

of the revisionist that the service was wrongly held sufficient

on him on 31.07.2019 in the case? If so, why? There is no

explanation.

9. The revisionist has also not explained as to when

he exactly got the information of the judgment and order

passed in the case. The court below has observed at one

stage that day-to-day delay has to be explained. This

observation is not in accordance with law. But, as stated,

the revisionist has not disclosed the position of service on

him in the case, based on which, the case proceeded ex

parte against him on 31.07.2019. He has not stated as to

when exactly did he come to know about the judgment

passed in the case and how did he come to know about it.

There should be reasonable ground for condoning the delay.

10. In view of what is stated hereinbefore, in fact, the

revisionist has not shown any cause for delay.

11. Having considered, this Court is of the view that

there is no cause explained by the revisionist to condone the

delay. The court below rightly rejected the application under

Section 5 of the Act. Accordingly, the revision deserves to be

dismissed.

12. The revision is dismissed.

(Ravindra Maithani, J.) 16.11.2022 Jitendra