M.S.Sanju @ Balasundar vs C.V.Veena Priyadarshini on 28 January, 2010

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Karnataka High Court

M.S.Sanju @ Balasundar vs C.V.Veena Priyadarshini on 28 January, 2010

Bench: Ravi Malimath

IN'THEFﬂGFiCOUR?(3FKARNATAKAlU"BANGALQRE

DATED THES ME 28*" DAY OF JANUARY 

BEFORE

THE HONBLE MR.3uSTICE RA..\/:1, 1'

RPFC.NG_'._§-.,.3 oF'2.Qc}9  '
 . .
MISC....C"./_L.AIO.,-2fj3~5_3f:;;)Qm'§

BETWEEN:  

Sri M.S.Sa Baia«su'n_da_r _'
S/0 Sri Siéddalingje_Gewd.a{ _.
Aged aiaoési: 34'v.ye'ar§,_  _  "
Residéngat Door-.Nc,13.,"?A6,

II gvrain, 5"" Cross', '

K:ki'sh;}a mu rthy" Pura .r

 " ,5/:Ayso":e Qist__rict. ...PETITIONER

COMMON

 _ 'iﬂyx  8: T.SesAhagiri Rae, Advocate)

AADQ5

 V C";-V.Veen:~3 Priyadarshini,
 'W['o M.S.Sanju @ Balasundar,
 Aged about 29 years,
7 D/0. Sri B.Bhagya

N0.35«=1, 'A' & 'B' Biock,

Naviiu Road, Kuvempunagar,

Mysore W 570 023. ...REE3PONDENT
COMMON

Qgk



(By Smt. M.Geetha, Advocate)

This RPFC filed under section..19(.'%ij"@$ri'--'1i»hé'i  

Courts Act against the order dated »i)?.jD$3'.s,2'O{}7_ ';3asLsed_iAri
C.Misc.332/2004 on the fiie of the?.JLidge','-_Famiiy~_Court,

Mysore, partiy ailowing theV.*oe_tition".filed uncdei=.sectio:'n "1iIZ5g

Cr.P.C.  

This iViisc.Cvi.Noi2O3SV3,'--2VCCi9"'fiied Liiiciie; section 5 of
the Limitation Act pra_y'mg to c_oii'done~--the deiay 702 if any
in preferring     .  .. 

This RPEC a/w:'MiS¢V{:CVL..:iiio.Z{)3..SV'3f20O9 coming on
for admission this'day_, tiie=<:o'uift' m-ad_e,ithe fOE|OWEFig:~

 QRDER

Th'e.._resoon_de'nt~fi.!'ed C.Misc.No.332/2094 before the

 Cvou.rt,'*-i.i${iysore, under Section 125 of Cr.P.C.

' ;V4s*e.ei<ivng~ii*na'i'nt_enance from the petitioner-husband, By the

 Vorder the Petition was aiiowed directing the

peti.tiVta.ner4'to pay a sum of Rs.2,00G/- as maintenance from

  'itii"i.e date of filing of the Petition tiii the disgaosai and

 thereafter a sum of Rs.2,200/-- from the date of passing of

i the order. The said order is questioned here.

Qéa/M



2. Sri Sunii Rao, learned counsel appear':-ngi..f_orS 

petitioner contends that the impugned or_de.rﬂ:i'sVv in 'law.

and liable to be set aside. He 
Miscellaneous and O.S.i\l,o'.Ei_\2/2(5{}.iEl;h""*were.'~--"--.iiVl.e:dA' 
respondent~wife seeking  and

iVl.C.i\lo.«1i8/2004 sveleliing divorce and by the order dated' and Thereafter, it appears 1: was considered sepeliivratelul has been passed. He thereiioirel, a judicial order is passed for ciu'b'bi.ng of'-»tAlfie'1cases,T the same would have to be heard and themcases could not be bifurcated and tried _"~s_epa~ra't.e_ly§j'He submits that it would amount to multiplicity of wjoceeildings and the same is opposed to law, 3 There is a deiay of 702 days in filing this Petitiorr. in support whereof Misc.No.2G3S3/2089 is filed and sufficient cause is sought to be made by stating on %La<r'~\ oath that the counsel appearing faiied to contest theﬁase. Thereafter, are affidavit in Court wherein additiorialjug.,_r_ot;nd»s have been taken with specific reference..to_u_:'the:»A.f.order'ofehiﬂ dubbing the cases together. IRefererj«.c'e_ f14§i'S-.:Eg1,5QiVfji:Qé:i"I made to the fact that on ,{Ja.ssing"'th'e' implhiﬁiiielvd "otd;er*0Vng 7~9--2oo7 the application <:'.v'fiiivvi.§<;.i\1io.33~2{_:o'o4was filed seeking to recall the .Ao'rdV_e:rI'd«ated M7~Vf9--2OO7. On 1S-9~2009. The said_.Ca:S_e_viias:wit'iidr'a_yu._n*'and the present Petition hi-ier:¥ee"'i isfﬁovn-tended that the time spent inif'pi4ese_eutii~i<_;i'~it;Misc.Ne.332/2004 be excluded while 'Cc11hC"Uila'C'1If".v(}V fiiing this Petition. haveheard Sri Stinil Rao, iearned counsel _ .fVo.r~" the petitioner and Smt.M.(3eetha, teamed C'oun$"e'i -appearing for the reseondents. Counseis have _ ;s_ubm~i-tited with regard to the deiay and I have also heard ' counsels on merits of the Petition.

WLM S. Initiaiiy in the affidavit fiied in supgort of condonation of deiay the iearned counsei for the_;Q.e't.i_tiO.ner wouid seek to expiain sufficient cause bx/_--§:3iead'iffng:' gross negiigence of the counsei;..ap_pear_i'ng'."*~--:'There"_is WHO". other ground apparent from the deiay has occasioned. E\i'e_i_ti-:eVr is'vther,e_ reference to C.Misc.4:29/2O£)a74.f:be:i_ng__fiiedftrorecaiii the order nor its subsequent""eiithdé'rae§ia,ti..'4""--Vt%lfie.,affidavit seeking condonation of any sufficient cause to.cori.do.ne.%ti'ie°'d,Veiay_' in fiiirrg this Petition. In the subsefquefnit affTida«§{it:_fi-:«{§Lgj;"'.reference has been made to the ab-piication 'seVe'i<'ingx'withcirawai. It is therefore submitted 2't.herVe*«.yvas dfeiay of .702 days. He submits that if the _'i:i_rofceved.i3r1g.AS'eariier were considered the deiay would be stibst_arrt,Eaiiy iess. Either way there wouid be deiay. The _ Vug.rou'n-dis urged in the affidavit with regard to the clubbing "~~V_V"'o§"éthe cases together and the Farniéy Court passing orders oniy on 2(}~«8--2DO7 cannot be a ground that wouid constitute sufficient cause for deiay in fiiing this Petition, %%'L*"r-

Those would be grounds on merits which co~-uld be considered if and when the delay stands terms of the reasons given in condonation of delay and in the Court today it is but eviden:t«V__th-Aayt' has been shown by the peititioner "delay in filing this Petition. Thereasor1s.'acc'o»tded' alre-insitifficient.

6. In supportiof' he would place reliasace'r'on;"i:he;i(j:.;2'cisl.;yn..in thecase of STATE or BIHAR 8-L OTHE-rigs" l<'Afi9ili£éSrH44iiv'l;4{t<__i>RAsAo smell AND A:\io"rHER reportediiinl 2306 with specific reference to paﬁeagrlaph §i"*t.o.._.contend that the delay should be ' .i.Vc'o-instrtfed'«.li:be_rally and refusal to condone the delay could ﬁresuit 'inj'j_rti'eritorious matter being thrown out at the thre.sho.EdV and cause of justice being defeated. la the i'in"s.tant case, while considering the delay E have also Aigconsidered the merits of the Petition as well as the conduct of the petitioner. The delay in this case has been viewed independently of its merits. In View of the facts 8:

WLW' ....'7'.....

circumstances and the Conduct involved, this is not a meritorions case that is not being considered on me_r"i~ts. it would rather snb~serve the cause of gustice lit by rejecting the application for Condon.atV_ionVV.V:wA.l.:'For aforesaid reasons, E find no} reason ".gas'4_'to"--tsoi2ir__tijie ' Judgment would come to_4_the"ai'd- ofpeti"tior;er'."ig Therefore, I conclude that"i'i'».tiflii'3c.Cvi1Fd.o'_:2(52Ei11*;/2009 for condonation be re}ect'e'd_. I l V 7, _xiéeiig...S:u.nii«..R'a.,o,learned connsel appearing for the petitioner n_as'~.u'i'ged::one ground so far as merits of the Pe_tit'io_n is conlcernevd. He contends that in terms of the 28-8'-":80? both the cases were ordered to be Therefore, the Court below couid not Ah'-ave':___v'club'bed the present Petition and passed orders Ag separately. In case the Court would do the same, the A' would have to be done after passing the order to the said effect. The same has not been done in the instant ,.---an---...,,.,,__ case. He therefore snbmits that there is an erfr of -8- procedure and it is an illegality committed by the Court beiow in bifurcating these cases and passing separate orders.

8. However, the learned counsel for the petitioner is unable to show to the Court as to what is the-

ehvisaged that he complains of. No order to support his case that the impgugr:ed1"ortler.V 'i..s;g"ill_Ae_gi::aE on that ground atone. The',ot_der c'l'u.hbing rha.tt.e'rs' to:ge'tiheiﬁ is within.the"_d_i_scre't.io'ri.,._of the Court and to hear such matterlsgasi the fit. There is no right with eltgheﬁol'xt'h.e'"partées to contend that the Court is bound to hear the matters that have been _ "c-lobbed--~.,tV_ogV.ether only because an order being passed. in a g"i~ven..__"circiurhstance of a case, it is the discretion of the .. Courtﬂtiased on the facts & circumstances to hear such "r~V_v'ri-matters as it deems appropriate in preference to other Vimatters. The question of passing a judicial order either to ciub the matters or to hear the matters independently Qedﬂx """""

wouid not arise for consideration nor could it be a' ground avaiiabie to the petitioner. In the absence yaw given procedure in accordance with iaw org"an.y'S§'taitute~../to the contrary i find no error conjrniittiediby the.:_'c'o_u.r_t"'below 7 in hearing the matter indepgendent'E..y:."--..

9. Before parting wi_th»«._th~e_g case"«i_t_is_r*eievant to note that substantia-iiiiiige.qL.igityy':,h'a';if shown to the petitioner. In view of='t"he--facVt's._8:__circu.m'st'ances invoived as far as%'b'aici§':i:,onAV'::}:6'~11.52-909'"a'n'interim order was granted subject to thep'e"titiioneir,:tdVepositing arrears within 6 weeks and to'makes_the7--,_m'e'hthiy payment of Rs.1,500/~ per as mainten-ahce on every succeeding month. Even V iasvoiiddaitegiiiiot a single rupee has been paid. The arrears iiiaishongéthedrate of the order was sum of Rs.1,24,{}OO/V. A suiiiroi? E§1s.25,000/~ was paid in cash on 8~1~2010. The tgiarrears are stiiigto be paid and monthiy maintenance is stiii not being paid. Notwithstanding the same, a suggestion was made by this Court to persuade the parties to arrive at a settiement and accordingly the iiiatter was adjourried or; 9///is "la.

a number of occasions. However, it is st2_b;fﬁ'1'tt'e*d...j:tiooia:/_ that the matter couid not be settled.

developments it woald lead ﬁg a...sg.;ors'c,!.tis.i'oz-:''~t'i'1-tatwe,the ' conduct of the petitioner Iatks_.bo:*iatid'e. For the aforesai_d reasohs; FV£.i.sc.Cﬁ\/'I'.'202"§3/2009 is rejected. Consequeotixj,.t_'Ri5FCi"6'3/_iZi§A0F3LisdismissedR i Sd/g t JUDGE

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