Madhya Pradesh High Court
Smt Renu Tomar D/O N.S Gaur vs Mahendra Pratap Tomar on 7 September, 2021
Author: Virender Singh
Bench: Prakash Shrivastava, Virender Singh
1
FA-1733-2019 & FA-1766-2019
THE HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
First Appeal No.1733/2019
Smt. Renu Tomar ... Appellant
versus
Mahendra Pratap Singh Tomar ... Respondent
and
First Appeal No.1766/2019
Smt. Renu Tomar ... Appellant
versus
Mahendra Pratap Singh Tomar ... Respondent
Appearance:
Shri Vivek Agrawal, learned counsel for the appellant/wife.
Shri Ankit Saxena, learned counsel for the respondent/husband.
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CORAM :
Hon'ble Shri Justice Prakash Shrivastava, Judge
Hon'ble Shri Justice Virender Singh, Judge
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Date of decision : 07.09.2021
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JUDGMENT
Per Virender Singh, J :-
These appeals under Section 19 of the Family Court Act, 1984 are directed against two separate orders dated 27.08.2019 passed by 2 FA-1733-2019 & FA-1766-2019 the Ist Additional Principal Judge, Family Court, Bhopal in MJC No.50/2017 (Civil) and MJC No.413-R/2017 (Criminal); whereby, application under Order 9 Rule 13 CPC along with Section 5 of the Limitation Act (for setting aside ex-parte divorce decree) and application under Order 9 Rule 9 CPC along with Section 5 of the Limitation Act (for restoration of petition under Section 125 of CrPC) filed by the appellant/wife have been dismissed.
2. Both husband and wife are fighting among themselves for their respective causes. The husband had filed a petition for divorce while the wife had filed a petition for maintenance before the same Family Court. They both were earlier contesting their respective petitions but after some time, wife could not appear before the Family Court on 02.11.2016. Consequently, she was declared ex parte in the petition for divorce and her own petition was dismissed for want of prosecution vide order dated 02.11.2016. Later, the Family Court ex parte decreed the divorce suit on 20.02.2017.
3. The wife approached the Family Court for restoration of her petition for maintenance and for setting aside the ex- parte decree of divorce. The Family Court acceded to her prayer and restored her petition for maintenance and also set aside the ex-parte decree of 3 FA-1733-2019 & FA-1766-2019 divorce vide two separate orders dated 05.01.2019. The husband challenged both these orders before this Court vide First Appeal Nos.204/2019 and 206/2019. These appeals were disposed of by co- ordinate Bench of this Court on 10.04.2019 and the matter was remanded back to the Family Court for reconsideration and to pass an appropriate order following the due process of law after recording evidence of the parties and giving them opportunity of hearing.
4. This time, after compliance with the afore-stated direction of this Court, the Family Court dismissed both the applications preferred by appellant/wife as stated in para 1 above. Being aggrieved by the said orders, the appellant/wife has preferred the present appeals.
5. Admittedly, the wife could not appear before the Family Court on 02.11.2016 and subsequently appeared on 11.05.2017 and filed two separate petitions being MJC No.50/2017 (Civil) and MJC No.413-R/2017 (Criminal). Thus, total period of absence comes to 190 days. After excluding the limitation prescribed for filing an application for restoration of petition under Section 125 of CrPC and for an application for setting aside ex-parte decree under Order 4 FA-1733-2019 & FA-1766-2019 9 Rule 13 CPC (30 days See Article 123 of the Limitation Act, 1963), the total delay comes to 160 days.
6. The reasons assigned by the wife for delay are that she is a rustic woman, unaware of the law and the procedure of the Court; therefore, she engaged a counsel and left everything else to him. She was assured that he will take care of her interest. But he did not inform her. Meanwhile she also fell ill and could not contact him. After getting well, she tried to contact her counsel, but couldn't contact him; therefore, she sent her father to find out status of her cases, who came to know about the impugned orders on 10.04.2017. She immediately filed applications for getting certified copies of the order and received them on 18.04.2017. On 11.05.2017 she filed both the applications for setting aside ex-parte decree of divorce and for restoration of her application for seeking maintenance. She also submitted a medical certificate Ex.P/1 issued by Dr Sunil Khare, certifying that she was suffering from viral hepatitis from 24.08.2016 to 05.12.2016 and was not fit during this period.
7. The ld. Family Court recorded the statement of the appellant/wife. The respondent/husband choose not to appear in the witness box. He only produced a medical certificated issued by the 5 FA-1733-2019 & FA-1766-2019 same Dr Sunil Khare to the effect that he was suffering from malaria from 08.07.2019 to 10.07.2019 and claimed that without being ill, Dr Khare issued certificate of his illness which makes his certificate issued for his wife false.
8. The ld. Family Court observed that there was a contradiction between the reasons mentioned in the application and the reason stated by the appellant/wife in her deposition. In the petition, she stated that she came to know about the impugned order through her father while in the statement she stated that she came to know, through a counsel, whom she engaged subsequently. It is further observed that she did not examined Dr Khare and did not explain the delay from 06.12.2017 (date of getting fit) to 20.02.2017 (date of ex-parte decree) and from 20.02.2017 to 11.05.2017 (date of filing applications). For these reasons, holding that the delay is not properly explained, the ld. Family Court dismissed both the petitions filed by the wife.
9. The law is well settled that the approach of the Court while dealing with the application under Order 9 Rule 13 of CPC or an application for restoration of the petition filed by the wife seeking maintenance under Section 125 of CrPC should be liberal and 6 FA-1733-2019 & FA-1766-2019 elastic rather than narrow and pedantic. The expression "sufficient cause" for not making the application within the period of limitation is to receive liberal construction and should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of the case so as to advance substantial justice. When there is no negligence, inaction or want of bona fide is imputable to the appellants or when the delay is not on account of any dilatory tactics, deliberate inaction or negligence on the part of the appellant, ordinarily it should be condoned. The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy. The courts should apply the law of limitation in a meaningful manner which serves the ends of justice. The courts should also be vigilant that construction of sufficient cause should not defeat substantive rights of the parties only on the ground of delay. In this regard, we can usefully refer several judgments of Hon'ble the Supreme Court like GMG Engg. Industries v. Issa Green Power Solution (2015) 15 SCC 659, Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95 , Katari 7 FA-1733-2019 & FA-1766-2019 Suryanarayana v. Koppisetti Subba Rao (2009) 11 SCC 183, Daria Lino D'sa Dias v. Anthony D'sa (2009) 17 SCC 129 , Bhivchandra Shankar More v. Balu Gangaram More (2019) 6 SCC 387 and M.K. Prasad v. P. Arumugam 2001 AIR SCW 2810.
10. It has been observed by the Supreme Court in Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 that "Procedure is meant to subserve and not rule the cause of justice. Procedural laws must be liberally construed to really serve as handmaid. Technical objections which tend to defeat and deny substantial justice should be strictly discouraged".
11. In Parimal vs Veena (2011) 3 SCC 545, the Hon'ble Apex Court observed that :
"13. "Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining 8 FA-1733-2019 & FA-1766-2019 inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] , Lonand Grampanchayat v. Ramgiri Gosavi [AIR 1968 SC 222] , Surinder Singh Sibia v. Vijay Kumar Sood [(1992) 1 SCC 70 : AIR 1992 SC 1540] and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. [(2010) 5 SCC 459 : (2010) 2 SCC (L&S) 50 : (2010) 2 SCC (Cri) 1291 : (2010) 2 SCC (Civ) 448])."
12. The Hon'ble Supreme Court in Rafiq vs Munshilal AIR 1981 SC 1400 has held that :
"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be, we do not know, he is 9 FA-1733-2019 & FA-1766-2019 better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr A.K. Sanghi".
13. The aforesaid view has been reiterated in the case of Ram Kumar Gupta vs Har Prasad AIR 2010 SC 1159 wherein it has been held that :
10
FA-1733-2019 & FA-1766-2019 "4. We have heard the learned counsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the writ petition for non-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Shri Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as the Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits.
As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and laches. But on a perusal and on proper examination of the record of this case, we find that no delay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non- prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non-appearance of 11 FA-1733-2019 & FA-1766-2019 the learned counsel for the appellants at that time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq v. Munshilal [(1981) 2 SCC 788] this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application."
14. We have perused the petition as well as the statement of the appellant/wife. After going through both the documents, we are of the opinion that there is no material contradiction in the reasons assigned by the appellant/wife. She has stated in her statement that when she did not receive any information from her counsel, she engaged a new counsel and through him, she came to know about the impugned orders. In the petition, she has stated that when she did not receive information, her father visited the Court and collected the information from the Court. On both the occasions, her intention does not seem to be contrary.
15. The appellant's statement as well as the record reflects that on both the occasions, her intention about the source of information is substantially the same and the difference is only with regard to the words used or due to difference in the way to express. She stated in her statement that she has changed her counsel twice. This shows 12 FA-1733-2019 & FA-1766-2019 that her counsel was not cooperating with her. This supports her contention that her counsel had not properly updated nor informed her about the status of the cases.
16. No reason has been assigned by the learned Family Court to disbelieve the medical certificate produced by the appellant/wife. The Family Court itself disbelieved the contention of the respondent/husband that Dr. Khare who had issued the medical certificate is not a reliable person.
17. The record reflects that non-appearance of the appellant/wife was for bona fide reason and it clearly lacks dilatory tactics, deliberate inaction or negligence on the part of the appellant.
18. Further, there is delay of only about 5 months which cannot be termed as an inordinate one.
19. Having regard to the period of delay, the reasons assigned for the same, the nature of litigation and the view expressed by the Hon'ble Supreme Court in the cases of Rafiq and Ram Kumar Gupta and other cases (supra), we are satisfied that the appellant has shown sufficient cause which prevented her from approaching the Family Court within the period of limitation. 13
FA-1733-2019 & FA-1766-2019
20. Consequently, both the appeals are allowed. The impugned orders dated 27.08.2019 passed in MJC No.50/2017 (Civil) and MJC No.413-R/2017 (Criminal) are set aside. The petition preferred by the appellant/wife for seeking maintenance under Section 125 of CrPC is restored to its original number and the ex-parte decree of divorce dated 20.02.2017 passed against her is set aside. The Family Court is directed to decide both the matters afresh after giving due opportunity of hearing to the parties and to pass appropriate orders in accordance with law as expeditiously as possible.
21. The appeals are allowed and disposed of accordingly.
(Prakash Shrivastava) (Virender Singh)
JUDGE JUDGE
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2021.09.07
14:48:11 +05'30'