High Court · 2010

Heard Mr. KP Sarma, Senior Advocate assisted by Mr. H Das, Advocate for the appl icant-wife and Mr. PJ Saikia, learned counsel for the opposite party-husband. The instant application is under section 5 of the Limitation Act, 1963 (hereafte r for short referred to as the Act), seeking condonation of delay of 663 days in filing the accompanying appeal preferred against the judgment and order dated 0 9.01.2007 passed by the learned Principal Judge, Family Court, Guwahati in FC(Cr l) No. 409/2004. Having regard to the issue seeking adjudication, it is conside red inessential to dilate on the rival pleadings bearing on the merit of the sub ject matter before the learned Court below. Suffice it to mention that the applicant-wife had filed an application under sec tion 125 of the Cr.PC, seeking grant of maintenance for her and two minor childr en begotten through the opposite party-husband. The marriage between the partie s is admitted. By the impugned judgment and order, the learned Court below sanc tioned an amount of Rs.800/- per month for the two children. As no such allowan ce was awarded for the applicant-wife, the appeal has followed. According to the applicant-wife, though as a matter of record the impugned decis ion was rendered on 09.01.2007, she was under a wrong impression that the case w as pending before the learned trial Court till 15.05.2007. It was only on 16.05 .2007 when she contacted her counsel, Shri SN Nath that she came to know about t he disposal of the said proceeding. On her request, the learned counsel aforena med applied for a certified copy of the judgment and order dated 09.01.2007 on 1 6.05.2007 and was delivered the same on 09.07.2007. Though, according to the ap plicant-wife she instructed her counsel to file an appeal before this Court she fell ill from Hepatitis and backache for which she had to remain under treatment from 12.07.2007 to 10.11.2008. According to the medical advice, she had to rem ain in bed rest for a period of 90 days on and from 15.11.2008. It was only aft er 15.02.2009 when she recovered she contacted her advocate and eventually, the appeal was filed on 20.02.2009. To support the above averments bearing on her a ilments the applicant-wife has appended to the application, medical certificates to that effect. The opposite party-husband in his counter, while denying the aforementioned asse rtions of the applicant-wife has alleged deliberate inaction, negligence and lac hes on the part of the applicant-wife as the reason for the undue delay Accordin g to him, she was physically fit during this period and had been enthusiasticall y pursuing a proceeding under section 498A of the Indian Penal Code instituted a gainst him and pending in the Court of Addl. Chief Judicial Magistrate, Kamrup, Guwahati. On oath, the opposite party-husband has mentioned that the applicant- wife was present in the aforementioned Court in connection with that case on 06. 12.2007, 01.03.2008, 03.04.2008, 13.05.2008, 15.07.2008 and 26.08.2008. He, the refore, in categorical terms has refuted the applicant-wife’s plea of being ill and prevented from taking necessary steps in preferring the accompanying appeal in time. In her affidavit-in-reply, the applicant-wife, while admitting her presence in t he Court of the Addl. Chief Judicial Magistrate on the aforementioned dates, has cited compelling circumstances as her justification for the same. Though, the parties thereafter have exchanged further pleadings, as the same do not disclose new materials, the same are not being referred to. Whereas, Mr. Sarma, has argued that in view of the causes shown in the applicati on, the delay is sufficiently explained justifying the condonation thereof. Mr. Saikia, has vehemently urged to the contrary. According to him, the applicant- wife at all relevant time was hale and hearty and that the delay ought not to be condoned, as the reasons cited are not only unfounded on facts, but also projec t lack of bona fide. We have extended our anxious consideration to the rival pleadings of the parties and the arguments based thereon. The principal ground on which the condonation of delay has been sought for is the continuous illness of the applicant-wife fr om 12.07.2007 to 15.02.2009 in two phases. The medical certificate dated 12.07. 2007 (Annexure 1 to her affidavit-in-reply), discloses that she was diagnosed to be suffering from sever Menorhogia and Arthritis of both knee joints and was ad vised complete bed rest and immobilization of the lower limbs for three months w .e.f. 12.07.2007. The medical certificate dated 15.11.2008 reveals that she had been suffering from traumatic backache and NSAID - (Sic) Hepatitis and for the said ailments had been advised complete bed rest in supine position for 90 days on and from 15.11.2008. Though, the applicant-wife has claimed that because of the ailments that had visited her, she continued to be confined with restricted movements, there is no unimpeachable evidence to substantiate her said condition for the period of 13.10.2007 to 14.11.2008 i.e. for a period of 11 months. Thi s is, incidentally the time gap during which she admittedly had appeared in the Court of the Addl. Chief Judicial Magistrate, Kamrup, Guwahati to attend to her case. The medical certificates produced by her also do not cover this period. Though, she has cited compelling circumstances having no alternative, we fail to understand as to how, having regard to the period of limitation prescribed by l aw for the accompanying appeal, she could have undermined the importance thereof . Apparently, a different yardstick had been adopted by her, vis-a-vis the pros pective appeal to be filed before this Court. The reason offered by her therefo re, is not convincing. There is, evidently, no explanation for the period from 13.10.2007 to 14.11.2008, which is within the duration of 663 days involved. Though, normally, a liberal approach is adopted by a Court of law in construing a cause offered by a party in default to explain the delay, adequate, cogent and convincing reasons must exist to exercise the equitable discretion in his/her f avour. In terms of section 19 (3) of the Family Courts Act, 1984, the period of limitation for filing an appeal of the present kind is 30 days. In absence of any material whatsoever for the period from 13.10.2007 to 14.11.2008, we are con strained to hold that this is not a fit case, where such a discretion ought to b e exercised in favour of the applicant-wife. It has been held time out of num ber that condonation of delay ought not to be awarded on only sympathetic or com passionate considerations. In the above premise, we do not feel convinced to condone the delay, as prayed f or. The application stands rejected. The miscellaneous application stands closed in the above terms.