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CHATTISGARH HIGH COURT
SANJAY K. AGARWAL, J.
Suresh Sharma – Appellant
Vs.
Sangita Sharma – Respondent
Criminal Revision No. 491 of 2009
Decided On : 19.8.2014
Indian Limitation Act, 1963 - Section 5 - Code of Criminal Procedure - Section 125 - Code of Civil Procedure - Rule 13 - Order 9 – claim of compensation – Condo nation of delay - It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the court should not forget the opposite party altogether - Family Court, by its impugned order dated 08.09.2009, rejected the application finding inter alia that there is delay of three months in filing the application and the applicant could not properly explain the inordinate delay of three months in filing the same. Against this order, the instant revision has been filed by the applicant/husband – Held, Taking into consideration the fact that applicant was seriously ill and he was hospitalized in the Bhrigu Nursing Home, Bhatapara for a fairly long time and considering the principles laid down by their Lordships of Supreme Court in the above referred case, this Court is of the opinion, that the applicant has succeeded in showing the sufficient cause for delay of 22 days in filing the applicant for setting aside the order of maintenance within the meaning of Section 5 of the Indian Limitation Act, 1963 and the same is hereby condoned - Now coming to the objection raised by Smt. Shastri, learned counsel for the non-applicant that this revision is not maintainable, the same is deserves to be rejected as it has already been held that mere quoting of wrong provision in the substantive application filed for setting aside ex parte order of maintenance, the Family Court would not cease to have jurisdiction to exercise power under proviso to sub-section (2) of Section 126 of the Code to set aside the ex parte order of maintenance; therefore, against the order rejecting application for setting aside ex parte order, revision under Section 397/401 of the Code of Criminal Procedure would be maintainable and it has rightly been filed. The objection so raised, it is hereby rejected - Concluding criminal revision is allowed. Impugned order dated 8.9.2009 is set aside. The said application is restored to the file of Family Court, Raipur in its original number for hearing and disposal in accordance with law on merits. The said Court is directed to decide the said proceedings within six months from the date of receipt of copy of this order - A court knows that refusal of condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words sufficient cause under Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice vide Shankuntala Devi Jain vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal vs. The Administrator, Howrah Municipality - Petition allowed
1. This revision is directed against the order dated 08.09.2009 passed by Family Court, Raipur in Case No. 19 of 2009, by which, the applicant/husbands application for setting aside ex-parte order of maintenance has been rejected by the Family Court finding no sufficient cause has been shown by the applicant within the meaning of Section 5 of the Indian Limitation Act, 1963 (henceforth the Act, 1963).
2. The core facts necessary for disposal of this revision are as under:-
2.1 On, an application filed by the non-applicant/wife under Section 125 of the Code of Criminal Procedure (for short the Code) claiming monthly allowance for maintenance stating inter alia that she is legally wedded wife of applicant; she is forced to live separately on account of cruelty extended by the applicant/husband and she is unable to maintain herself having no independent source of income.
2.2 The Family Court issued notice to the applicant, which was duly served to him but he failed to appear before the said Court leading to passing of the ex parte order of maintenance on 30.09.2008.
2.3 The present applicant on 22.1.2009 filed an application under Order 9, Rule 13 of Code of Civil Procedure (for short the CPC) read with Section 151, CPC an also filed application under Section 5 of the Indian Limitation Act stating inter alia that he was seriously ill and admitted in the hospital for about one month and, therefore, he could not prefer the appeal within the time prescribed under proviso to sub-section (2) of Section 126 of the Code.
2.4 The Family Court, by its impugned order dated 08.09.2009, rejected the application finding inter alia that there is delay of three months in filing the application and the applicant could not properly explain the inordinate delay of three months in filing the same. Against this order, the instant revision has been filed by the applicant/husband.
3. Shri Pankaj Agrawal, learned counsel appearing for the applicant would submit that though the application under Order 9, Rule 13 read with Section 151 of CPC was filed by the applicant, but the substantive provision for setting aside ex parte order is under proviso to sub-section (2) of Section 126 of the Code. He would further submit that ex parte order of maintenance was passed on 30.09.2008 and the application for setting aside ex parte order of maintenance was filed on 22.01.2009, thus, there is delay of 22 days only, for which proper reason has been assigned that he was medically unfit and under treatment, therefore, impugned order be set aside and the Family Court be directed to hear and dispose of the main application filed under Section 125 of the Code on merits.
4. Smt. Meena Shastri, learned counsel appearing for the non-applicant would submit that the present revision as framed and filed is not maintainable as the remedy of the applicant is to file miscellaneous appeal under Order 43, Rule 1(c) of Code of Civil Procedure. Alternatively, she would further submit that no sufficient cause has been shown by the applicant for delay in filing the application for setting aside ex parte order of maintenance.
5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein including order impugned with utmost circumspection.
6. An ex parte order of maintenance was passed by the Family Court on 30.9.2008 on an application filed by the non-applicant/wife under Section 125 of the Code. If the ex-parte order of maintenance was passed by the Family Court, remedy of the aggrieved person is to file an application under proviso to sub-section (2) of Section 126 of the Code. Thus, if the aggrieved party had filed an application under Order 9, Rule 13 of Code of Civil Procedure (for short the CPC) read with Section 151, CPC alongwith application under Section 5 of the Indian Limitation Act, though the applicant is required to file application under proviso to sub-section (2) of Section 126 of the Code, the said Court is not denuded of its a
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