Calcutta High Court (Appellete Side)
Robin Kumar Saha vs Shruti Jaiswal & Ors on 19 May, 2023
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
19.05.2023 Court- 42 Item-01(s/l) CRR/1961/2023 Robin Kumar Saha
-Vs-
Shruti Jaiswal & Ors.
For the petitioner:
Mr. Kalyan Kr. Bandopadhyay, Sr. Adv., Mr. Sabir Ahmed, Adv., Mr. Dwaipayan Basu Mallick, Adv., Mr. Arkaprava Sen, Adv., Mr. Rahul Kr. Singh, Adv., Ms. Sweta Chakraborty, Adv.
Order dated 12th May, 2023 passed by the learned Sessions Judge-in-Charge at Alipore in Criminal Appeal No.112 of 2023 is under challenge in the instant revision.
It is pertinent to say that the petitioner is the husband of the opposite party No.1. The opposite party No.1 filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 on 19th May, 2022 before the learned Additional Chief Judicial Magistrate and the learned Magistrate transferred the case record to the 9th Court of the learned Judicial Magistrate at Alipore for disposal in accordance with law. The learned Magistrate issued notice of the said proceeding upon the petitioner and directed him to appear before the transferee court on 17th July, 2022 with affidavit-of-assets and liabilities in accordance with the direction of the Hon'ble Apex Court in Rajnesh vs. Neha reported in (2021) 2 SCC 324. Subsequently, on 15th 2 November, 2022 the opposite party No.1/wife filed her affidavit-of-assets and liabilities and on the same day without giving any opportunity to the opposite party the learned Magistrate fixed 21st November, 2022 for hearing of the petition under Section 23 of the PWDV Act which was filed by the petitioner. On 21st November, 2022 the learned Magistrate passed an ex-parte order directing the petitioner to make payment of Rs.1,15,000/- per month as interim maintenance with effect from 19th May, 2022 within 10th day of each calendar month in default the opposite party No.1/wife will be at liberty to execute the same as per the provision of law.
The petitioner preferred an appeal before the learned Sessions Judge at Alipore along with an application under Section 5 of the Limitation Act. The learned Sessions Judge rejected the application under Section 5 of the Limitation Act on the ground that the petitioner failed to make out sufficient ground for condonation of delay. In view of rejection of petition under Section 5 of the Limitation Act the appeal under Section 29 of the PWDV Act was also dismissed.
In the mean time, the opposite party No.1/wife filed Misc Execution Case No.237 of 2023 against the present petitioner on 30th March, 2023.
It is submitted by Mr. Bandopadhyay, learned Senior Counsel on behalf of the petitioner that the impugned order passed by the learned Additional Sessions Judge-in-Charge, South 24 Parganas at Alipore is palpably illegal because of the fact that he took a strict approach while rejecting the application under Section 5 of the Limitation Act at present it is not the law that every days delay is to be explained. On the contrary, the law 3 relating to Section 5 of the Limitation Act is that the court should not take pedantic approach and if it is found that the petitioner was prevented by sufficient cause from filing the appeal within the period of Limitation, the application under Section 5 of the Limitation should be allowed. Thus, the impugned order dated 12th May, 2023 is palpably illegal and bad in law.
The instant revision is admitted. The petitioner is directed to serve notice upon the private opposite party under registered speed post with AD and file affidavit of service within two weeks after vacation.
In the mean time further proceedings in connection with Misc Execution Case No.237 of 2023 be stayed till 15th August, 2023.
On the prayer made by the learned Senior Counsel for the petitioner a plain copy be supplied to the learned Advocate on record.
(Bibek Chaudhuri, J.)