Monday, 30 January 2017

When court can condone delay in filing of appeal against order of interim maintenance?

A party, applying for condonation of delay, has to show
sufficient cause for not approaching the Court within time. The
Courts are obliged to take a pragmatic view in the matter. The
Hon'ble Apex Court as far back as in the year 1987, in the case of
“Collector, Land Acquisition, Anantnag and another Vs.
Katiji and others”, reported in AIR 1987 SC 1353, has, inter
alia, held that no party stands to gain by approaching the Court
late and there is no presumption that the delay is intentional.
These are the basic principles, which are to be kept in mind before
the Court considers the facts in each case.
12. Turning to the present case, undisputably, after the
interim order was passed on 17/01/2014, the petitioner, on legal
advice, had taken recourse to fling of an application under Section
127 of Cr.P.C., which was filed on 15/02/2014. That application
was prosecuted and was ultimately dismissed on 25/06/2014. The
learned Counsel for the petitioner has made certain submissions in
order to show that the said application was also erroneously
rejected, particularly in view of the provisions of Section 127(2) of
Cr.P.C. and in the face of the orders passed by the Civil Court. I
would not to go into this issue, particularly when the petitioner
has now opted to challenge the original order of grant of interim
maintenance dated 17/01/2014. It would also not be necessary to
go into the question whether an appeal or revision lies. The
parties would be entitled to raise appropriate contentions in this
regard and the learned Sessions Judge would decide the issue in
accordance with law. If at all, as urged on behalf of the
respondent no. 2, the order is not appealable and a revision lies
against the same, the quantum of delay would be further reduced
in as much as the period of limitation for filing of a revision would
be 90 days (as against thirty days for filing an appeal). Be that as
it may, I find that on application of principles akin to Section 14 of
Indian Limitation Act, the delay deserves to be condoned. There
are no circumstances on record to show any negligence or lack of
diligence on the part of the petitioner.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 18 OF 2015
Shri Kashinath Naik


V/s
 State of Goa

CORAM :- C. V. BHADANG, J.
Date : 20thMarch , 2015.
Citation: 2016 ALLMR(CRI)4916

2. The learned Counsel for the respondents waive notice
on behalf of the respondents.
3. Taken up finally with the consent of the learned
Counsel for the parties.
4. The brief facts are that the respondent no. 2 has filed
an application for grant of maintenance under Section 125 of the
Code of Criminal Procedure (Cr.P.C., for short) against the
petitioner herein, being Maintenance Application No.2/2013/A,
which is pending on the file of the learned Judicial Magistrate,
First Class at Ponda, Goa. The Second respondent is claiming
maintenance of Rs.5,000/- per month from the petitioner.
According to the second respondent, she was married with the
petitioner on 22/01/2007. After marriage, she had gone to reside
with the petitioner at Raigini, Bandora, Ponda, Goa. Shortly
thereafter, the marriage ran into rough weather and the parties
started staying separately. It appears that the petitioner had filed
a Matrimonial Petition No.9/2009/A against the second respondent
in the Court of the learned Senior Civil Judge at Ponda for a
decree for annulment of marriage and for declaring the marriage
as nullity. It appears that the said petition has been decreed vide
judgment and order dated 26/02/2013 and marriage between the
parties (registered in the office of Civil Registrar at Ponda against
entry No.66/2007) has been annulled and declared as null and
void. It is undisputed that the second respondent has
unsuccessfully challenged the said judgment and decree before
the learned District Judge. Thus, the said decree of annulment of
marriage has attained finality. Be that as it may, the second
respondent, as stated earlier, had filed an application for
maintenance under Section 125 of Cr.P.C. on 02/03/2013. The
second respondent also filed an application for grant of interim
maintenance therein, claiming a maintenance of Rs.5,000/- per
month, pending disposal of the application. It appears that the
petitioner filed a reply to the application opposing the same. It
was, inter alia, contended that there was misrepresentation by the
second respondent, as to her date of birth and the marriage was
null and void and was so declared in the Matrimonial Petition
No.9/2009/A. The petitioner also denied all the adverse
allegations, including about his earning Rs.15,000/- per month. It
was contended that the second respondent is not entitled to
maintenance as claimed.
5. The learned Magistrate, by an order dated 17/01/2014,
has granted interim maintenance of Rs.5,000/- per month against
the petitioner. It further appears that the petitioner filed an
application under Section 127 of Cr.P.C. for cancellation of order
of interim maintenance. That application was filed on 15/02/2014.
The learned Magistrate, by an order dated 25/06/2014, was
pleased to dismiss the application, inter alia, on the ground that
the said application under Section 127 of Cr.P.C. was not
maintainable. The learned Magistrate also refused to accept the
contention of the petitioner that he was not heard. It was found
that the petitioner was present and was represented by an
Advocate. The learned Magistrate found that the prayer made in
the application does not fall under the provisions of subsection (1)
to subsection (4) of Section 127 of Cr.P.C. and the Magistrate was
not competent to recall his own order. In the face of such finding,
the application came to be rejected.
6. It is after this, that the petitioner, instead of
challenging the order dated 25/06/2014, chose to file an “appeal”
against the original order granting interim maintenance dated
17/01/2014. That appeal was filed along with an application for
condonation of delay to the extent of 168 days. The second
respondent filed her reply and opposed the condonation of delay,
inter alia, on the ground that order dated 17/01/2014 is not
appealable and as such, an application for condonation of delay in
filing the proceedings styled as an “appeal”, would not be
maintainable. It was contended that the application nowhere
specifies the reasons for delay and as such, no case has been made
out for condoning the same. The learned Sessions Judge, by an
order dated 17/12/2014, has dismissed the application for
condonation of delay. Feeling aggrieved, the petitioner has
approached this Court.
7. I have heard the learned Counsel for the applicant and
the second respondent. With the assistance of the learned
Counsel for the parties, I have perused the copies of the record
produced and the impugned orders passed.
8. It is submitted by the learned Counsel for the
petitioner that the application for maintenance itself was filed
after the marriage was declared as null and void. It is submitted
that as such, the petitioner had a strong prima facie case against
the impugned order of grant of interim maintenance. The learned
Counsel has submitted that the time spent while the petitioner
prosecuted the application under Section 127 of Cr.P.C., could be
excluded both under Section 14 of the Indian Limitation Act and
Section 470 of Cr.P.C. The learned Counsel would submit that
even otherwise, the Courts have to take a pragmatic approach
while considering the prayer for condonation of delay. It is
submitted that the learned Sessions Judge has erroneously held
that the petitioner was derelict in challenging the order, in as
much as the petitioner had already availed the remedy of filing an
application under Section 127 of Cr.P.C. He, therefore, submitted
that the delay deserves to be condoned.
9. On the contrary, the learned Counsel for the second
respondent submitted that the order granting interim maintenance
is not appealable and as such, the application for condonation of
delay in filing the proceedings styled as an appeal, would not be
maintainable. It is submitted that there is delay of 168 days in
challenging the order of interim maintenance and no
circumstances or reasons are shown for condoning the delay. The
learned Counsel has also advanced the submission in order to
demonstrate that the petitioner was indeed represented and was
heard before the order of interim maintenance was passed. He,
therefore, urged that no case is made out and the application for
condonation of delay is rightly dismissed.
10. I have considered the rival circumstances and the
submissions made. At this stage, it is necessary to state that it is
neither necessary nor proper to go into the merits of the impugned
orders passed. The issue presently before this Court essentially is,
as to whether the petitioner can be justifiably permitted to
challenge the order before the Sessions Court.
11. A party, applying for condonation of delay, has to show
sufficient cause for not approaching the Court within time. The
Courts are obliged to take a pragmatic view in the matter. The
Hon'ble Apex Court as far back as in the year 1987, in the case of
“Collector, Land Acquisition, Anantnag and another Vs.
Katiji and others”, reported in AIR 1987 SC 1353, has, inter
alia, held that no party stands to gain by approaching the Court
late and there is no presumption that the delay is intentional.
These are the basic principles, which are to be kept in mind before
the Court considers the facts in each case.
12. Turning to the present case, undisputably, after the
interim order was passed on 17/01/2014, the petitioner, on legal
advice, had taken recourse to fling of an application under Section
127 of Cr.P.C., which was filed on 15/02/2014. That application
was prosecuted and was ultimately dismissed on 25/06/2014. The
learned Counsel for the petitioner has made certain submissions in
order to show that the said application was also erroneously
rejected, particularly in view of the provisions of Section 127(2) of
Cr.P.C. and in the face of the orders passed by the Civil Court. I
would not to go into this issue, particularly when the petitioner
has now opted to challenge the original order of grant of interim
maintenance dated 17/01/2014. It would also not be necessary to
go into the question whether an appeal or revision lies. The
parties would be entitled to raise appropriate contentions in this
regard and the learned Sessions Judge would decide the issue in
accordance with law. If at all, as urged on behalf of the
respondent no. 2, the order is not appealable and a revision lies
against the same, the quantum of delay would be further reduced
in as much as the period of limitation for filing of a revision would
be 90 days (as against thirty days for filing an appeal). Be that as
it may, I find that on application of principles akin to Section 14 of
Indian Limitation Act, the delay deserves to be condoned. There
are no circumstances on record to show any negligence or lack of
diligence on the part of the petitioner.
13. In the result, the petition is allowed.
14. Rule is made absolute in terms of prayer clauses (a)
and (b). The impugned order dated 17/12/2014 is hereby quashed
and set aside. The delay in approaching the learned Sessions
Judge is hereby condoned, subject to the petitioner depositing
costs of Rs.2,000/- before the learned Sessions Judge. It is made
clear that all the points on merits, including about the
maintainability of the proceedings, are kept open.
15. In the circumstances, there shall be no order as to
costs.
 C. V. BHADANG, J.

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