Allahabad High Court
Balpreet Singh vs State Of U.P. And Another on 8 October, 2018
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved on 25.09.2018 Delivered on 08.10.2018 Court No. - 44 Case :- CRIMINAL REVISION No. - 1794 of 2017 Revisionist :- Balpreet Singh Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sharique Ahmed,Nitin Sharma Counsel for Opposite Party :- G.A.,Syed Mohammad Abbas Abdy Hon'ble Rajeev Misra,J.
1. This criminal revision has been filed challenging the order dated 30th March, 2017 passed by the Additional District Judge, Court No. 16, Kanpur Nagar in Misc. Case No. 213 of 2016 (Balpreet Singh vs. State of U.P. & Others), whereby the delay condonation application (Paper No.4 B) filed by the revisionist under Section 5 of the Limitation Act for condoning the delay in filing the criminal appeal against the ex parte order dated 11th March, 2015 passed by the Metropolitan Magistrate, Court No.2, Kanpur Nagar in Complaint Case No. 1721 of 2014 (Smt. Charanjeet Kaur vs. Balpreet Singh & Others) under Section 12 of the Protection of Women From Domestic Violence Act, 2005, Police Station Anwarganj, District Kanpur Nagar, has been rejected.
2. Mr. Sharique Ahmad, learned counsel for the revisionist, learned A.G.A. for the State and Mr. S.M.A. Abdy, learned counsel appearing for the opposite party no.2 were heard in length and detail.
3. From the record, it appears that the marriage of the revisionist was solemnized with the opposite party no.2 on 14th May, 2006. From the wedlock and co-habitation of the revisionist and the opposite party no.2, one son, namely, Ishan was born. Subsequently, it appears that the relationship with the revisionist and the opposite party no.2 became incompatible and reached a point of no return.
4. Faced with despair and destitution, the opposite party no.2 initiated criminal proceedings against the revisionist by filing complaint dated 19th November, 2013 before the Chief Judicial Magistrate, Kanpur Nagar. The said complaint was registered as Complaint Case No. 6758 of 2013 (Smt. Charanjeet Kaur vs. Balpreet Singh). Vide order dated 14th July, 2014 passed by the Special Chief Judicial Magistrate, Kanpur Nagar the revisionist was summoned under Sections 498-A, 504, 506, 406 I.P.C. in the above mentioned complaint case.
5. Subsequently, the opposite party no.2 filed D.V. Petition dated 3rd December, 2014, which was registered as Complaint Case No. 1721 of 2014 (Smt. Charanjeet Kaur vs. Balpreet Singh & Others) under Section 12 of the Protection of Women from Domestic Violence Act, 2005, claiming relief under Sections 12, 17, 19, 20B, 22 and 23 of the aforesaid Act. The said complaint case came to be allowed ex parte by the Metropolitan Magistrate, Court No.2, Kanpur Nagar vide order dated 11th March, 2015 .
6. By means of the said order dated 11th March, 2015, the application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act of 2005") by the opposite party no.2 was allowed ex parte. The revisionist was restrained from making any contact with the opposite party no.2 and further restrained from committing any violence against the opposite party no.2. The revisionist was also directed to pay a sum of Rs.20,000/- per month towards maintenance and a sum of Rs. 20 lacs towards compensation to the opposite party no.2. Upon failure to deposit the said amount within a period of one month, the revisionist was required to pay interest at the rate of 6% on the aforesaid amount.
7. Feeling aggrieved by the ex parte order dated 11th March, 2015, the revisionist preferred Criminal Misc. Application No. 22087 of 2015 (Balpreet Singh vs. State of U.P. & Another) before this Court. Ultimately the aforesaid criminal misc. application came to be disposed of finally vide order dated 11th April, 2016, whereby the revisionist was granted liberty to avail the remedy of appeal, as provided under Section 29 of the Act 2005. For ready reference the order dated 11th April, 2016 passed by this Court in the aforesaid criminal misc. application is reproduced herein-under:
"Heard learned counsel for the parties and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 11.3.2015 passed by Metropolitan Magistrate, Court No. 2, Kanpur Nagar, District Kanpur Nagar in Complaint Case No. 1721 of 2014 and under Section 12 of Protection of women from Domestic Violation Act, P.S. Anwarganj, District Kanpur Nagar.
Learned counsel for the applicant submitted that the impugned order has been passed ex-parte in his absence.
Per contra, learned A.G.A. submits that applicant has been provided with a remedy of appeal in view of the provisions of Seciton 29 of Domestic Violation Act.
In the case of Mohit @ Sonu Vs. State of U.P. 2013 (7) SCC 789, the Apex court has held that "when there is a specific remedy provided by way of appeal or revision, the inherent powers under section 482 cannot be and should not be resorted to."
In view of discussions made above, I have come to the conclusion that learned counsel for the applicant has failed to show that there is any abuse of process of court or sufficient ground which requires exercise of inherent powers by this Court in order to secure the ends of justice. The application is devoid of merits and is liable to be dismissed.
The application u/s 482 Cr.P.C. is disposed off, accordingly with liberty to applicant to seek his remedy of appeal, if so advised."
8. Pursuant to the order dated 11th April, 2016 the revisionist filed a criminal appeal before the court below i.e. the District and Sessions Judge, Kanpur Nagar as provided under Section 29 of the Act of 2005. However, as there was delay in filing the criminal appeal, a delay condonation application in terms of Section 5 of the Limitation Act (Paper No.4-B) was also filed for condoning the delay in filing the criminal appeal. This came to be registered as Misc. Case No. 213 of 2016 (Balpreet Singh vs. State of U.P. & Others).
9. The delay condonation application filed by the revisionist seeking condonation of delay in fling the criminal appeal was objected to by the opposite party no.2. Accordingly, she filed her objection (Paper No. 14-C) to the delay condonation application filed by the revisionist. The Additional District and Sessions Judge, Court No.10, Kanpur Nagar by means of the order dated 30th March, 2017 rejected the delay condonation application and consequently dismissed the appeal as barred by limitation.
10. The court below by means of the order dated 30th March,2017 concluded that inspite of the fact that the registered summons were served upon the revisionist but the revisionist failed to appear before the Magistrate. As such, the revisionist deliberately avoided the proceedings initiated by the opposite party no.2. It was further concluded that against the ex parte judgment dated 11th March, 2015 steps were taken by the revisionist to get the same annulled so that the revisionist is saved from the liability arising out of the order dated 11th March,2015. On the aforesaid findings, the court below concluded that the revisionist has not been diligent in pursuing the criminal proceedings initiated against him. As such, the explanation offered by the revisionist for condonation of delay in filing the appeal is not sufficient enough to condone the delay. On the aforesaid factual premise, the court below came to the conclusion that the delay condonation application filed by the revisionist is not liable to be allowed and consequently dismissed the same. Feeling aggrieved by the order dated 30th March, 2017, the revisionist has now come to this Court by means of the present Criminal Revision.
11. The present criminal revision came up for admission on 13th July, 2017 and this Court issued notice to the opposite party no.2.
12. Mr. S.M.A. Abdy, Advocate has put in appearance on behalf of the opposite party no.2. However, no counter affidavit has been filed by him in the present criminal revision.
13. Mr. Shariq Ahmad, the learned counsel for the revisionist has submitted with vehemence that against the ex parte order dated 11th March, 2015 the revisionist had filed Criminal Misc. Application No. 22087 of 2015 (Balpreet Singh vs. State of U.P. & Another) before this Court. The said application was decided vide order dated 11th April, 2016. Immediately thereafter the revisionist has filed the criminal appeal before the Court below vide Memo of Appeal dated 21st July, 2016 along with a delay condonation application under Section 5 of the Limitation Act.
14. On the aforesaid factual premise, it is urged that on account of wrong legal advice, the revisionist had filed an application under Section 482 Cr.P.C. before this Court. Therefore, the court below while deciding the delay condonation application ought to have taken into consideration the provisions of Article 14 of the Limitation Act which provides for condonation of delay in case the aggrieved person has been pursuing a wrong legal remedy. For ready reference Article 14 of the Limitation Act is reproduced herein-under:
"14 Exclusion of time of proceeding bona fide in court without jurisdiction. --
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
15. From the perusal of the aforesaid provision, it is explicitly clear that Courts have been empowered to condone delay in case the said delay has occurred on account of pursuing a wrong legal remedy.
16. The filing of Criminal Misc. Application No. 22087 of 2015 (Balpreet Singh vs. State of U.P. & Another) against the ex parte order dated 11th March, 2015 and its disposal by this Court vide order dated 11th April, 2016 is not disputed by Mr. S.M.A. Abdy, the learned counsel for the opposite party no.2 nor the learned A.G.A.
17. It is next contended that the court below has taken a hyper technical view of the matter. According to the learned counsel for the revisionist, a judgment after hearing the parties is far far better than a judgment by default or ex parte. In support of the aforesaid submission, reliance is placed upon the judgment of the Apex Court in the case of Ramji Dass & Others Versus Mohan Singh, reported in 1978 A.R.C. 496. The same is reproduced herein-below:
"An ex parte decree passed eight years ago was set aside by the court which passed it and the order was confirmed in revision by the District Court. The High Court, in exercise of its powers under S. 115 C.P.C., set aside on various grounds. After having heard counsel, we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interests of Justice which always informs the power under S. 115 C.P.C. We, therefore, set aside that order and also the ex parte decree. We direct the trial court to take back the suit on file and proceed forthwith to trial."
18. Elaborating his submissions, leaned counsel for the revisionist submits that the Apex Court has now crystallized the law in respect of condonation of delay in filing an appeal or a revision etc. He has referred to the judgments of the Apex Court in the case of Collector, Land Acquisition, Anantnag Versus M.S.T. Katiji; 1987 (2) SCC 107, State of Nagaland Versus, A.O. Lipok; 2005 (3) SCC 752, State (NCT of Delhi) Versus Ahmed Zaan; 2008 (14) SCC 582, Manoharan Versus Shivranjan & Others; 2014 (1) ARC 474.
19. Much emphasis has been laid on paragraph nos. 9 and 10 of the judgment in the case of Manoharan (Supra). As such paragraph nos. 9 and 10 of the same are quoted herein-below:
"9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr. (2000) 9 SCC 94, it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:
"11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) ILLJ 500 SC: 1987 (1) ARC 288 held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
XXX XXX XXX
12. After referring to the various judgments reported in New India Insurance Co. Ltd. v. Shanti Misra [1976] 2 SCR 266, Brij Inder Singh v. Kanshi Ram (1918) ILR 45 P.C. 94, Shakuntala Devi Jain v. Kuntal Kumari [1969]1 SCR 1006, Concord of India Insurance Co. Ltd. v. Nirmala Devi [1979] 118 ITR 507(SC), Lala Mata Din v. A. Narayanan [1970] 2 SCR 90, State of Kerala v. E.K. Kuriyipe 1981 (Supp)SCC 72, Milavi Devi v. Dina Nath (1982) 3 SCC 366, O.P. Kathpalia v. Lakhmir Singh AIR 1984 SC 1744, Collector, Land Acquisition v. Katiji (1987) (1) ARC 288 SC, Prabha v. Ram Parkash Kalra 1987 Supp(1)SCC 399, G. Ramegowda, Major v. Sp. Land Acquisition Officer [1988] 3 SCR 198, Scheduled Caste Co-op. Land Owning Society Ltd. v. Union of India AIR 1991 SC 730, Binod Bihari Singh v. Union of India AIR 1993 SC 1245, Shakambari & Co. v. Union of India AIR 1992 SC 2090, Ram Kishan v. U.P. SRTC 1994 Supp (2)SCC 507 and Warlu v. Gangotribai AIR 1994 SC 466, this Court in State of Haryana v. Chandra Mani 2002 (143) ELT 249(SC) held :
''......The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach injustice oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorize the officers to take a decision to give appropriate permission for settlement. In the event of decision to file the appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.' To the same effect is the judgment of this Court in Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma AIR 1996 SC 2750.
13. In Nand Kishore v. State of Punjab (1995)6 SCC 614 this Court under the peculiar circumstances of the case condoned the delay in approaching this Court of about 31 years. In N. Balakrishnan v. M. Krishnamurthy 2008 (228) ELT 162 (SC) this Court held that the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of a dilatory strategy, the Court must show utmost consideration to the suitor. In this context it was observed in 2008 (228) ELT 162 (SC) :
It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court."
10. In the case in hand, it is clear from the evidence on record that the appellant could not pay court fee due to financial difficulty because of which his suit got rejected. It is also pertinent to note that the appellant had moved the Court claiming his substantive right to his property. The appellant faced with the situation like this, did not deserve the dismissal of the original suit by the Court for non- payment of court fee. He rather deserved more compassionate attention from the Court of sub Judge in the light of the directive principle laid down in Article 39A of the Constitution of India which is equally applicable to district judiciary. It is the duty of the courts to see that justice is meted out to people irrespective of their socio economic and cultural rights or gender identity."
20. On the strength of the aforesaid judgments, the learned counsel for the revisionist submits that the court below should have adopted a liberal approach in the matter and decide the delay condonation application taking into account the aforesaid approach instead of being swayed away with certain facts of the case.
21. Lastly, it is submitted that the revisionist in order to pursue his M.B.A. Course had taken loan to the tune of Rs. 9 lacs from Punjab National Bank, Main Branch, District Bahraich and had taken admission in Mohawak College of Toranto in December, 2012. After completing his M.B.A. Course the revisionist joined programme which lasted upto 2015. Thus, the non-appearance of the revisionist in the proceedings initiated by the opposite party no.2 under Section 12 of the Act of 2005 is on account of the aforesaid facts and not due to deliberate negligence or willful avoidance on the part of the revisionist.
22. He, thus, submits that the court below while deciding the delay condonation application has not considered the facts stated herein-above and therefore, recorded an erroneous finding that inspite of service of summons the revisionist did not appear before the trial court.
23. It is also urged that the court below has not considered the law on the subject as crystallized by the Apex Court in the case of Manoharan (Supra). As such, the impugned order of the court below is liable to be set aside by this Court.
24. The cause shown by the revisionist for condonation of delay is both sufficient and truthful. The court below has rejected the delay condonation application without recording any finding on the sufficiency of the cause or the truthfulness of the cause but appears to have been swayed by the facts and circumstances of the case. He, thus, submits that the court below has not only failed to exercise its jurisdiction with due diligence but has passed an order, which if allowed to stand, would occasion a failure of justice. Thus, on the cumulative strength of the aforesaid submissions, it is submitted that the impugned order dated 30th March, 2017 passed by the court below be set aside and a direction be issued to the court below to hear the appeal filed by the revisionist on merits.
25. Mr. S.M.A. Abdy, the learned counsel appearing for the opposite party no.2 has seriously disputed the contentions raised by the learned counsel for the revisionist. According to the learned counsel appearing for the opposite party no.2, there is no denial of the fact that the opposite party no.2 is the legally wedded wife of the revisionist. There is further no denial of the fact that from the wedlock and co-habitation of the revisionist and the opposite party no. 2 a son, namely, Ishan was born in the year 2007. In the entire affidavit filed in the support of the stay application appended along with the memo of criminal revision, there is no averment giving the details of the steps undertaken by the revisionist himself to maintain the opposite party no.2 i.e. the wife and the minor son Ishan. The parties are governed by the Hindu Law and therefore, both morally and legally the revisionist is duty bound to maintain the wife as well as his minor son. However, the revisionist has totally failed in discharging this legal and moral obligation. It is also urged that on date the liability arising out from the order dated 11th March, 2015 has reached a sum of Rs. 30 lacs but no amount has been paid till date to discharge the liability arising out of the order dated 11th March, 2015. Thus, it is urged that as the revisionist has failed to comply with the order dated 11th March, 2015 even when there is no stay order operating against the same, no case for interference by this Court is made out. Thus, on the aforesaid equitable considerations, it is urged that the revisionist is not entitled to any sympathetic or humanitarian consideration by this Court and the present criminal revision is liable to be dismissed.
26. From the material brought on the record, there is no denial of the fact that the opposite party no.2 is the legally wedded wife of the revisionist and from the wedlock of the revisionist and the opposite party no.2 a son, namely, Ishan was born. It is also not in dispute that the revisionist is legally and morally bound to maintain his wife as well as his minor son which he has failed to discharge. However, there is nothing on the record to contradict the averments made in paragraph nos. 18 and 19 of the affidavit which go to show that at the relevant point of time the revisionist was outside the country pursuing his M.B.A. Course and programmes.
27. The question of limitation, delay and laches as well as condonation of such delay are being examined and explained every day by the Courts.
28. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & ors.; AIR 1987 SC 1353, observed that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the reason that other side cannot claim to have vested right in injustice being done because of non-deliberate delay.
29. The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
30. Time-barred cases should not be entertained by Courts as the rights which have accrued to others by reason of delay in approaching the Court, cannot be allowed to be disturbed unless there is a reasonable explanation for the delay. The vested rights of the parties should not be disrupted at the instance of a person who is a guilty of culpable negligence. (Vide R.S. Deodhar Vs. State of Maharashtra, AIR 1974 SC 259; and K.R. Mudgal Vs. R.P. Singh, AIR 1986 SC 2086). The Privy Council in General Fire and Life Assurance Corporation Ltd. Vs. Janmahomed Abdul Rahim, AIR 1941 PC 6, relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that "a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law."
31. In N. Balakrishnan Vs. M. Krishnamurthy; (1998) 7 SCC 123, the Apex Court explained the scope of limitation and condonation of delay, observing as under:-
"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."
32. In (Smt.) Prabha Vs. Ram Parkash Kalra; 1987 (Suppl) SCC 339, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay
33. In Vedabai alias Vaijayanatabai Baburao Patil Vs.Shantaram Baburao Patil & ors; JT 2001 (5) SC 608, the Apex Court made a distinction in delay and inordinate delay observing as under:-
"In exercising discretion under Section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other wise will be a relevant factor so the case calls for a more cautious approach...."
34. In P.K. Ramachandran Vs. State of Kerala & Anr.; (1997) 7 SCC 556, the Hon'ble Apex Court held as under:-
"Law of limitation harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation as equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained."
35. In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra; AIR 1976 SC 237 Supreme Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram; AIR 1917 PC 156, it was observed that true guide for a Court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Vs. Kuntal Kumari; AIR 1969 SC 575, the Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section d5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
36. The Apex Court in the case of State of Kerala Vs. E.K. Kuriyipe; (1981) Supp SCC 72, held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In (Smt.) Milavi Devi Vs. Dina Nath; (1982) 3 SCC 366, the Apex Court examined the facts of the case and held that the appellant had sufficient cause for not filing the appeal within the period of limitation. The Court came to the conclusion that the Apex Court under Art. 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and case was remitted for decision on merits.
37. Again in O.P. Kathpalia Vs. Lakhmir Singh; AIR 1984 SC 1744, the Apex Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.
38. In G. Ramegowda Major Vs. Spl. Land Acquisition Officer, Bangalore; AIR 1988 SC 897 the Supreme Court held as under:-
"If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individual. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assession what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristics of the functioning of the Government. Government decisions are proverbially slow enumbered, as they are by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have ''a little play at the joints'. Due recognition of these limitations on Governmental functioning- of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process."
39. In State of Haryana Vs. Chandramani, AIR 1996 SC 1623, Supreme Court considered large number of its earlier judgments including Binod Bihari Singh Vs. Union of India, (1993) 1 SCC 572; M/S Shakambari & Co. Vs. Union of India, (1993) Supp (1) SCC 487; Warlu Vs. Gangotribai, (1995) Supp (1) SCC 37; Ramlal Motilal & Chhotelal Vs. Rewa Coalfields Ltd., AIR 1962 SC 361, Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi, AIR 1979 SC 1666, Lala Mata Din Vs. A. Narayanan, AIR 1970 SC 1953, and held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner.
40. Thus, a conjoint reading of the aforesaid judgments leads to the inescapable conclusion that the delay in filing an appeal or revision, all should ordinarily be condoned unless the facts are so clinching that even a man of ordinary prudence may not accept the explanation offered for condoning the delay.
41. The issue concerning the Court is whether in the light of the facts as noted herein above, the impugned order dated 30th March, 2017 is liable to be set aside without there being any protection in favour of the opposite party no.2 i.e the wife as well as the minor son, namely, Ishan.
42. On the aforesaid pointed query, Mr. Sharique Ahmad, the learned counsel for the revisionist upon instructions from the revisionist has submitted that the revisionist is ready to pay a sum of Rs. 2 lacs before the court below by means of an Account Payee Bank Draft in favour of the opposite party no.2. He further submits that the bona fide of the revisionist is not to be doubted as only upon the deposit of the aforesaid amount the appeal of the revisionist may be directed to be heard by the court below on merits, failing which the present criminal revision shall stand dismissed.
43. The Court has no reason to doubt the bona fide of the revisionist. Further more the dispute between the parties is a private and matrimonial dispute. In case an opportunity is granted to the parties they may amicably settle the dispute. The Court is not unmindful of the fact that on account of the incompatible relationship of the revisionist and the opposite party no.2 the real sufferer is the minor child, namely, Ishan who stands deprived of paternal love and affection.
44. Considering the facts and circumstances of the case as well as the law on the subject as noted herein above, the present criminal revision is liable to be allowed. The present criminal revision, consequently, succeeds and is allowed. The impugned order dated 30th March, 2017 passed by the court below is set aside. The Court below is further directed to hear the appeal filed by the revisionist on merits after condoning the delay in filing the appeal. The appeal shall be heard and disposed within a period of two months from the date of production of a certified copy of this order before the court concerned.
45. However, the directions issued by this Court as stated above shall be complied with by the court below only if the revisionist submits a bank draft for a sum of Rs. 2 lakhs (Rupees two lacs only) drawn in favour of the opposite party no.2 before the court below on or before 10th November, 2018. In case the aforesaid direction is not complied with, the present criminal revision shall stand dismissed automatically. The concerned Magistrate shall, thereafter, be free to proceed with the recovery of the amount (payable under the order dated 11th March, 2015) under Section 12 of the Act of 2005 read with Rule 6 (5) of the Protection of Women From Domestic Violence Rules, 2006.
46. With the aforesaid directions, the present criminal revision is allowed.
(Rajeev Misra, J.) Order Date :-08.10.2018 Sushil/-