Delhi District Court
Mahesh Chandra vs Durga Kainthola on 29 October, 2014
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH): SAKET: NEW DELHI
Criminal Appeal No. 68/2014
ID No: 02406R0102322014
Mahesh Chandra
s/o late Kundal Lal Gokhlaney
R/o J27, Saket, New Delhi (Guest House). .... Appellant
Versus
Durga Kainthola
w/o Sh. Mahesh Chandra
rd
R/o J212, 3 Floor,
Saket, New Delhi. .... Respondent
Instituted on: 30.04.2014
Judgment reserved on: 29.10.2014
Judgment pronounced on: 29.10.2014
J U D G M E N T
1. This criminal appeal under section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Domestic Violence Act") is preferred on 29.04.2014 against judgment dated 05.09.2012 rendered by Ms. Priya Mahendra, Metropolitan Magistrate, Mahila Court, South District on the file of complaint case no. 162/1 of 2010 whereby the petition of the respondent herein under Section 12 of the Domestic Violence Act Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 1 of 12 was allowed to the effect of directing the appellant to, interalia, to pay Rs.10,000/ per month to the respondent herein towards her maintenance and other expenses of the children from the date of filing of the petition of 05.05.2010, in addition he being directed to deposit tuition fees of the children and bear medical expenses of the son who is dyslexic.
2. The appeal herein has been filed after expiry of the period of limitation of 30 days prescribed for the purpose in terms of Section 29 of the Domestic Violence Act. The application under Section 5 of Limitation Act submitted with the appeal calculates the delay to be of 570 days.
3. On notice, the respondent has appeared and seeks to contest the application for condonation of delay.
4. I have heard Sh. Mohd. Seed Hussain, advocate for the appellant and Ms. Neha Gupta, advocate (DLSA). I have gone through the trial court record which has been called for the present purposes.
5. The trial court record, as indeed the application under Section 5 of Limitation Act, clearly indicate that it is not disputed by the appellant that he was duly served with the notice on the main petition under the Domestic Violence Act as issued by the Metropolitan Magistrate vide her first order dated 05.05.2010. The Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 2 of 12 notice as admittedly received by the appellant required him to appear and submit his response before the Metropolitan Magistrate on 15.07.2010. The proceedings recorded on 15.07.2010 by the Metropolitan Magistrate show that the appellant did not appear in person nor deputed any counsel to represent him. He instead chose to be represented by his driver, who had been sent to submit an application for adjournment. Thus, the appellant was represented by a person duly authorised by him for such purpose.
6. The learned Metropolitan Magistrate adjourned the matter for 18.08.2010 after issuing certain directions for interim protection as had been sought by the respondent. The matter was scheduled to come up before the Metropolitan Magistrate on 18.08.2010 for appearance of the respondent, reply and arguments. The proceedings recorded beyond 15.07.2010 show that the appellant never appeared before the Metropolitan Magistrate in terms of the aforementioned directions given on 05.05.2010. He was set ex parte vide order dated 18.08.2010, as a consequence of which the matter was taken up to the next stage of calling upon the respondent (petitioner before the Metropolitan Magistrate) to adduce ex parte evidence. The ex parte evidence was led eventually by the respondent herein on 30.11.2010 and, on her Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 3 of 12 subsequent request, she was granted further opportunity to lead additional evidence which came on record on 02.11.2012. The matter kept hanging fire till arguments were heard and the ex parte judgment was passed on 05.09.2012. This would indicate that the case had remained alive on the board of Metropolitan Magistrate for almost two years after the first date fixed for appearance of the appellant herein.
7. The appellant seeks to explain the delay through the application under Section 5 of Limitation Act by claiming that he had deputed the driver since he was unwell on the relevant date. He submitted that he was expecting a reply "in writing" on the said request submitted through the employee. He also claimed that he expected another notice for filing reply from the court. Having taken that position, he also stated in the same application that he had instructed Sh. Som Nath Bharti, advocate to represent him in the complaint case and that the said counsel had extended assurance to him that he would look after the matter, but, later, some dispute arose between him and that Sh. Bharti and Sh. Bharti did not even return the file inspite of repeated requests. The appellant claimed that he had learnt about the ex parte judgment passed on 05.09.2012 only on 28.03.2014, when the copy of the execution Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 4 of 12 application, which had been filed by the respondent later, was served upon him.
8. The respondent herein has contested the above contention through reply filed. Her case is that the appellant had been all along aware of the proceedings before the Metropolitan Magistrate and, therefore, there is no "sufficient cause" for the delay to be condoned.
9. During the course of hearing, the counsel was asked as to whether the appellant had filed any complaint with the Bar Council against the advocate to whom default in not returning the file and in appearance on his behalf in the proceeding of the Domestic Violence Act has been attributed. The counsel for appellant conceded that no complaint has been filed with the disciplinary authority viz. Bar Council. In the given circumstances it is clear that the story of instructions to an advocate and he having made default has been created as a fiction to some how make a case for condonation of delay. [Darshan Lal Dhuper Vs. Motia Rani & ors [110 (2004) DLT 516] and Pradip Kumar Chakravarty Vs. Satish Miglani [164 (2009) DLT 392]
10. The fact remains that the appellant was admittedly duly served with the notice by the Metropolitan Magistrate. This would have Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 5 of 12 made him alive to the need to appear before the court and respond to the allegations made by the respondent against him and to the prayer sought by her under the Domestic Violence Act. It has been brought out during the course of hearing on the appeal that the appellant is a qualified medical professional having pursued higher education even abroad. He, thus, is not a lay person. Going by his own averments, he had engaged an advocate and would have also been properly and legally advised. In these circumstances, it is difficult to accept his contention that having sent his driver for seeking adjournment, he expected the court to respond to him in writing or by way of a fresh notice.
11. In M/s Democratic Builders Vs. U.O.I., 1992(2) CCC 79 it was, inter alia, held that application seeking condonation of delay was required to explain delay of each and every day. In Soorajmal Nagarmal Vs. Golden Fibre and Products AIR 1969 Calcutta 381, it was observed that sufficient cause within the contemplation of Section 5 of Limitation Act must be a cause which is beyond control of the party invoking the aid of the section. The cause for delay in making the application which by due care and attention could have been avoided cannot be sufficient cause within the meaning of Section 5 of Limitation Act.
Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 6 of 12
12.In Union of India Vs. Major K.K. Taneja 43 (1991) DLT, the ground pleaded for condonation of delay was found to be "false" and, therefore, was held to be a circumstance which disentitled the appellant to any indulgence in the matter for condonation of delay.
13.The judgment in North Delhi Power Ltd. Vs. AAR ESS Industries 177(2011) DLT 632, referred to two decisions of Hon'ble Supreme Court namely Balwant Singh Vs. Jagdish Singh & ors. V (2010) SLT 790 and Ram Lal & others Vs. Rewa Coal Fields Ltd. AIR 1962 SC 36.
14. In the case of Balwant Singh (supra), Hon'ble Supreme Court made the following observations: "We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definitive consequences on the rights and obligations of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, has accrued in favour of one party as a result of the failure of the other party to explain the delay but Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 7 of 12 showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party."
(Emphasis supplied)
15. Hon'ble Court found the averments made by the applicant in that case seeking condonation of delay to be "not correct" and ex facie lacking "bonafide". Against this back ground, it was observed as under: "The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed."
(Emphasis supplied)
16. In Ram Lal (supra), Hon'ble Court ruled as under: "7. In constructing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 8 of 12 and this legal right which has accrued to the decree holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269 It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration,....."
(Emphasis supplied)
17. It is clear from the above decision of Hon'ble Supreme Court, the bonafide of the applicant is one of the relevant considerations at the stage of adjudication upon the application for condonation of Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 9 of 12 delay. It is on this basis that Hon'ble High Court in North Delhi Power Ltd. (supra) held as under: "While dealing with an application for condonation of delay under Section 5 of the Limitation Act, the Court must bear in mind two important considerations. Firstly, the expiration of limitation for filing an appeal gives rise to a legal right to a decree holder to treat the decree as binding between the parties and this right should not be lightly disturbed. Second, if sufficient cause is shown for condonation of delay, the delay should be condoned. It has been repeatedly held by the Supreme Court of India that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice. In the same breath, it has been held that the discretion should be exercised, when there is no negligence or inaction nor want of bonafides imputable to the appellant the Court must be satisfied that there was due diligence on the part of the appellant."
(Emphasis supplied)
18. The counsel for the respondent has further relied upon M. Satyanarayana Murthy & ors Vs. Mandal Revenue, Officer cumLand Acquisition Officer [(1998) 7 SCC 445] and Parimal Vs. Veena @ Bharti [AIR 2011 SC 1150]. The following observations of Hon'ble Supreme Court in the case of Parimal (supra) in para 9 need to be noted in extenso : Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 10 of 12 "9. "Sufficient cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much 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 view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that 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 in active". However, the facts and circumstances of each cae 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. "
19. Clearly, the appellant has failed to show any sufficient cause. His explanation is found devoid of substance and lacking in bonafides. The delay, thus, cannot be condoned. The application under Section 5 of Limitation Act is, accordingly, dismissed. Consequently the appeal cannot be entertained. It is disposed of accordingly.
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20.The Trial Court record be returned with copy of this judgment.
21. A copy of the judgment be given dasti to both sides.
22.File of the appeal be consigned to record room. Announced in open Court today on this 29th day of October, 2014. (R.K. GAUBA) District & Sessions Judge (South) Saket/New Delhi Crl. Appeal No.68/2014 Mahesh Chandra Vs. Durga Kainthola Page 12 of 12