Gujarat High Court
Rakeshbhai Amarsinh Damir vs Bhartiben Rakeshbhai Damir on 25 March, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/CA/13/2023 ORDER DATED: 25/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 13
of 2023
In
F/FIRST APPEAL NO. 21817 of 2022
With
F/FIRST APPEAL NO. 21817 of 2022
With
R/FIRST APPEAL NO. 18 of 2020
==========================================
RAKESHBHAI AMARSINH DAMIR
Versus
BHARTIBEN RAKESHBHAI DAMIR
==========================================
Appearance:
MR P A MEHD(3489) for the Applicant
B D MALHOTRA(7400) for the Respondent
==========================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 25/03/2025
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV)
1. This application has been filed by the applicant - appellant. The challenge in the first appeal is to the order dated 30.09.2019 passed by the Family Court, Ahmedabad. In the civil application, for condoning the delay of 214 days, on the earlier occasion i.e. 12.03.2025, we had informed Mr.P. A. Mehd, learned counsel that in light of the decision of this Court on the question of counting the period of delay, the number of days had to be recounted and the Page 1 of 5 Uploaded by V.R. PANCHAL(HC00171) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:52:47 IST 2025 NEUTRAL CITATION C/CA/13/2023 ORDER DATED: 25/03/2025 undefined affidavit had to be filed accordingly and affidavit has been filed by the applicant.
2. On perusal of the application for condonation of delay of 927 days, it is the case of the applicant that since the original H.M.P. Suit No. 818 of 2005, was allowed inasmuch as that his divorce was granted, he thought it fit not to pursue the matter further realizing the effect of the directions given in the operative portion of the judgment. On reading the operative portion of the judgment under challenge Mr.Mehd, learned counsel would submit that though application filed by the applicant for divorce is allowed and the marriage has stood dissolved, para - 4 of the directions when read would indicate that the applicant is restrained from transferring any of his immovable property without specific written consent of the opponent herein and his son Dhruvesh. We are informed by Mr.Mehd, learned counsel that the son has now turned major even on the date of the judgment. Perusal of the application, would indicate that, it was only when the applicant received the notice for First Appeal No. 18 of 2022 since respondent herein had challenged very decree of divorce granted in his favour and the appeal was admitted, he thought of taking corrective action for filing the appeal. The applicant accordingly, sought legal advice and appeared in the first appeal and then filed an application for condonation of delay.
3. Ms. B. R. Damir, opponent herein appears as party-in-person and vehemently objects the application for condonation of delay. Affidavit-in-reply has been filed. Taking us through the affidavit-in- reply, the opponent who appeared as party-in-person would submit that there is deliberate and intentional delay in challenging the judgment purely with an ulterior motive. She would submit that as far Page 2 of 5 Uploaded by V.R. PANCHAL(HC00171) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:52:47 IST 2025 NEUTRAL CITATION C/CA/13/2023 ORDER DATED: 25/03/2025 undefined as maintenance proceedings are concerned, even though the judgment was of the same date and the applicant was vigilant in taking a recourse of challenging, he did not challenge the decree of the Family Court insofar as it restrained him from alienating the properties. As far as the contention of the applicant that he caused her pain and, therefore, it was thought it fit at the stage of receiving the notice of the first appeal to challenge the same and that the applicant had not understood ramifications of the judgment, she would submit that the applicant is holder of doctorates degree in English literature and it is difficult to comprehend that he would not understand the judgment and decree. She would rely upon the order passed by the learned Single Judge of this Court in rejecting the application permitting her to withdraw the amount of maintenance deposited before the Court in Criminal Revision Application No. 1402 of 2019 which was filed promptly in the year 2019. She would, therefore, submit that though the applicant was diligent enough to challenge the order of maintenance and deprive withdrawal of the amount of maintenance, the delay in filing the first appeal was deliberate.
4. We have considered the submissions made by Mr.Mehd, learned counsel for the applicant - appellant and opponent - respondent as party-in-person. We have perused the directions given by the Family Court which are under challenge. One of the directions appears to be that the applicant can not transfer any of the immovable properties without specific written consent of the opponent herein or his son.
5. The papers of First Appeal No. 18 of 2020 are tagged with the present civil application. Reading of the order-sheet would indicate that on 01.12.2021, this Court, after hearing the opponent, who was Page 3 of 5 Uploaded by V.R. PANCHAL(HC00171) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:52:47 IST 2025 NEUTRAL CITATION C/CA/13/2023 ORDER DATED: 25/03/2025 undefined appellant, admitted the appeal and issued notice. The order-sheet would indicate that fresh notice of rule was issued returnable on 25.04.2022. From further affidavit filed by the applicant, it is evident that he was served with the notice of appeal on 17.04.2022. He therefore entered his appearance and though the date of 16.06.2022 had gone by where he did not appear, but he appeared on the next date i.e. on 17.06.2022.
6. What we note from the date of registration of the civil application for condonation of delay is that it was registered immediately on 05.07.2022 i.e. almost within less than a month from his appearance in the first appeal filed by the opponent herein. Obviously, therefore, what is apparent that when the appellant realized that the decree of divorce which he had obtained from the Family Court was also subject matter of challenge in an appeal at the hands of the opponent and the appeal was admitted, it was reasonable for the applicant to file appeal especially when there were directions in the operative part of the judgment to take permission of the opponent and her son for alienation of property. The appeal has been filed after immediately appearing in the first appeal at the hands of the respondent within less than a period of 30 days.
7. These circumstances would suggest that the applicant though may have been a bit indolent in approaching, however, the case would not merit ousting at threshold without condoning the delay in light of what we have stated hereinabove.
8. As a result, application is allowed. The delay is hereby condoned. Rule is made absolute accordingly.
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Registry to list the appeal for admission hearing on 15 th April 2025.
(BIREN VAISHNAV, ACJ) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 5 of 5 Uploaded by V.R. PANCHAL(HC00171) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:52:47 IST 2025