Criminal Revision No. 1276 of 2021 · Madhya Pradesh High Court · 2023

(BY SHRI ANUBHAV RAJ PANDEY, LEARNED COUNSEL FOR THE RESPONDENT) .....RESPONDENTS Reserved On: 06.07.2023 Delivered On: 14.07.2023 This revision coming on for admission this day, th e court passed the following: ORDER Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM 2

1.This revision petition has been filed by the applicants being aggrieved by the order dated 27.02.2020, passed in MJC No.02/2019, whereby the applications filed by the applicants/petitioners under Section 5 of Limitation Act and Order 9 Rule 9 r/w Section 151 of CPC have been dismissed.

2.It is submitted by the counsel for the applicants that the matter should be decided on merits and not only on technical grounds. The applicant is a lady. Due to unavoidable circumstances, counsel could not appear on behalf of the applicant before the Trial Court on various occasions. A person should not suffer due to a mistake of his/her counsel. Applicant No. 1 is the wife, applicant Nos. 2 and 3 are the minor children of the respondent. On the basis of these grounds, counsel prayed that the impugned order be set aside and restoration of the application under Section 125 of Cr.P.C. be granted to the applicants by remanding back the case to the Trial Court.

3.Learned counsel for the respondent has vehemently opposed the prayer by submitting that despite grant of various opportunities, applicant has failed to appear before the Trial Court. Therefore, no case is made out for restoration of the application, hence, he prayed for rejection of the revision.

4. In light of the rival submissions, I have gone through the record and found that the petitioners have filed their petition under Order 9 Rule 9 r/w Section 151 of C.P.C and application under Section 5 of the Limitation Act before the learned trial Court. The reasons mentioned in the application under Section 5 of the Limitation Act are considered, but disallowed. It appears that the petitioners are precluded to appear before the learned Family Court due to various reasons. The petitioner has submitted regarding her illness and also assigned that her both children i.e. petitioner no.2 and 3 were aged about 6 and 4 years respectively. Under these circumstances, her petition for restoration was Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM 3 dismissed. The said application filed under Section 5 of the Limitation Act was supported by an affidavit and also supported by the statements of petitioner Asha and one witness namely Ramsingh. The submissions of these witnesses are unrebutted in the cross-examination.

5. Here, it is unfolded by para no.11 of the impugned order that on order sheet dated 30.11.2018, the date 17/01/2019 had been noted in the margin of the order sheet. Actually, the word are used as "noted me/17.01.2019". However, the learned trial Court has viewed that the fact is as to who has made such endorsement and when it was made, is not adverted on record. It is further mentioned that the proceedings of order sheet were culminated in presence of parties. Since, the parties are estopped to challenge the order sheet, the statements that the Court has made the applicant's counsel note dated

17.01.2019, is false.

6. Now, conundrum is, as to how the order sheet was noted by the Advocate without permission of the Court in as much as the order sheets of the Courts are assumed to be the property of the Court. There is nothing available o n record which shows that the Court has initiated any action against any employee with regard to this wrong noting of the aforesaid date.

7. That apart, Asha AW-1 and her father Ramsingh AW-2 have also deposed about said noting of date and there statements has not been rebutted in their cross-examination on this point. The petitioners have also adduced the diary of Advocate Ex.D/1(C) in their support. On the contrary,the respondent has not adduced any evidence before the Court in rebuttal. Under these conditions, the finding of the learned family court regarding false noting of date

17.01.2019 is not substantiated by the evidence and therefore, this finding is Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM perverse and not sustainable. 4

8. The learned Family Court, in order to justify its findings, assigned as to previous negligence of the applicant in the Court. However, it is settled law that the previous negligence which have been already overlooked or excused can not be taken into account in further proceedings of dismissal of the case in default.

9. On this aspect, enunciation of Hon'ble Supreme Court in the case of G.P. Shrivastava vs. R.K. Raijada [AIR 2000 SC 1221], is condign to quote here:- "....The 'sufficient cause' for non appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier...."

10. Actually, the provisions of Order IX of Cr.P.C never meant to be the penal statute and it can be applied only in the cases of gross negligence. The parties should not be deprived of the opportunities of having a satisfactory disposal of the case which evidently can only be done when the parties have the full opportunity of placing their case and testimony before the Court.

11. In terms of Limitation Act, it is well settled that the law of limitation is based on public policy to ensure that the parties to litigation did not resort to the delay tactics in seeking a legal remedy. If an application filed under Section 5 of the Limitation act, the Court has to condone the delay, if sufficient cause is shown. Adopting a lenient approach in condoning delay is one of the guiding Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM 5 principles. On this aspect, this Court, considering the point of Order IX Rule 9 of the CPC and Section 5 of the Limitation Act, articulated that even if the restoration application was filed at belated stage and the parties fail to prove the sufficient cause for condoning the delay, keeping in view the importance of the point, the Court is empowered to consider the application under Section 5 of the Limitation Act.

12. On this Aspect, this Court in the case of Riyaj Khan and others vs. Kasam Khan and others [AIR 2013 MP 138] has adumbrated in para no.11 of the judgement as under: "11.In view of the aforesaid for the sake of arguments, if it is deemed that there was mistake on the part of respondent nos. 1 and 2 herein in filing the proceeding for restoration of the civil suit as, the same was filed at belated stage or till some extent, they have failed to prove the sufficient cause for condoning the delay under Section 5 of the Limitation Act even keeping in view the stake of litigation in which dispute of the title of the immovable property was involved, the trial Court was bound to consider and allow such application of Section 5 of the Limitation Act as well as the application of Order 9 Rule 9 of the Civil Procedure Code, but the same was dismissed under wrong premises."

13. Reverring back to the facts of the present case, in view of the aforesaid propositions of law, it is quiet vivid that the case in hand pertains to a family dispute, wherein the destitute wife having two minor children filed the Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM 6 case for maintenance under Section 125 of Cr.P.C. against her husband. In this sequence, she had been honestly pursuing her case since 17.08.2016 and on

30.11.2018, her counsel appeared and noted the date of 17.01.2019 for next hearing, but afterthat petitioners' applications and MJC were dismissed in default. After this unfortunate proceeding, she filed an application for restoration under Order IX of Rule 9 of CPC alongwith an application under Section 5 of the Limitation Act on 07.02.2019. Before this Court, it was fairly submitted that the date was wrongly noted by her counsel. However, that petition was dismissed by the impugned order.

14. Virtually, such type of cases related to maintenance amount for a destitute wife and her children require more sensitivity and the Court must try to decide them substantially rather than to dismiss on hyper- technical grounds. It is time honoured principle that when substantial justice and technical justice are pitted against each other, substantial justice always prevails. The vagrancy of ladies is always harmful for human society and therefore, in order to maintain equilibrium of society, such type of destitute ladies must be protected. It is well settled that in cases where a destitute rather deprived lady of society applies for something, the lenient approach of the Court is called for in the interest of justice.

15. Hence, in view of the reasons assigned in the revision petition and other factual matrix of the case, this Court find that the concerned application of the petitioner under Section 125 of Cr.P.C. should be restored and therefore, this revision petition deserves to be allowed in entirety.

16. In the result thereof, the revision petition is allowed and consequently, setting aside the impugned order, the matter is remitted back to the learned Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM 7 family Court concerned with a direction to restore the original MJC No.140/2016 filed under Section 125 of Cr.P.C by the petitoner and adjudicate the same in accordance with law after giving proper opportunity of hearing to both the parties.

17. Let the record alongwith the copy of this order be sent back to the Court concerned for necessary compliance.

18. The petitioners and the respondents are directed to remain present before the learned Trial Court on 26.07.2023 for further proceedings in the original MJC filed by the petitioners under Section 125 of Cr.P.C.

19. With the aforesaid, the petition stands disposed off. Certified copy, as per rules. (PREM NARAYAN SINGH) JUDGE Signature Not Verified Signed by: AMIT KUMAR Signing time: 7/14/2023 6:32:15 PM