Delhi District Court
Ca 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & Anrs on 24 May, 2014
CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
In the matter of :-
Cr. Appeal no : 08/14
Unique Case ID No. : 02404R0107122013
Anil Kumar
S/O Sh Subey Singh Gulia,
R/O H.No 154, Harsukh Apartment,
Plot no. 4, Sector 7, Dwarka,
New Delhi ...............PETITIONER
VERSUS
1. Smt( Dr.) Shipla Modi
w/o Sh Anil Kumar
D/o Dr. S.C Modi
R/O B-16, Commercial Complex,
Mukherjee Nagar
Delhi - 110 009
2. Sh Subey Singh Gulia
R/O H.No 154, Harsukh Apartment,
Plot no. 4, Sector 7, Dwarka,
New Delhi .
3. Smt Savitri Gulia
W/o Sh Subey Singh Gulia.
R/O H.No 154, Harsukh Apartment,
Plot no. 4, Sector 7, Dwarka,
New Delhi .................RESPONDENTS
Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 1 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs Date of institution : 22.04.2013 Date of argument : 30.04.2014 Date of order : 24.05.2014 ORDER____________________________________________________
1. Vide this order, I shall dispose off appeal filed u/s section 29 of Protection Of Women From Domestic Violence Act, 2005 ( hereinafter referred as 'Act').
2. It is not necessary to set out the facts in detail. Suffice it to note , the brief facts are :-
a) Smt Shilpa Modi was married to Sh Anil Kumar on 31.10.1998 at Delhi and it appears that they lived together for few years . Out of the said wedlock one child Master Divij was born. It is an admitted case that master Divij is in the custody of Smt Shilpa Modi. Unfortunately both the parties are accusing each other for turmoil in their matrimonial life and making allegations against each other.
b) Smt Shilpa Modi filed a petition u/s 12 of the Act before the ld Trial Court making prayer u/s 18 ,19,20, and 22 ( herein after referred as 'Petition').
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c) Alongwith said petition, Smt Shilpa Modi had also filed an application u/s 23 of the Act seeking interim relief .
d) Vide order dated 9.11.2012( hereinafter called the 'impugned order'), the application u/s 23 moved by the Smt Shilpa Modi was disposed off whereby husband Anil Modi was directed to pay monthly a sum of Rs 50000/- (Fifty Thousand per month) towards maintenance of Shilpa Modi and her child, apart from the amount of Rs 27000/- per month which was being paid by Anil Kumar ( Rs 15000/- towards rent expenses and Rs 12,000/- towards the expenses of child) upto 10th of each English Calender Month from the date of filing of this application till the final disposal of the case as interim maintenance within three months from the date of order i.e 09.11.2012.
e) Appellant Anil Kumar has challenged the said order by way of present appeal.
3. For the sake of convenience, Anil Kumar shall be referred to as the Appellant/husband and Shilpa Modi shall be described as the respondent/wife .
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4. Here it is pertinent to mention that from the ordersheet dated 20.5.2013, it is evident that appellant husband submitted that respondent no.2 and 3 being the parents of the appellant/husband are only the proforma respondents and no relief has been sought against them. It was also submitted that there was no requirement for service of summons of present appeal on respondent no.2 and 3. Therefore , only respondent no.1 who is the wife of the appellant is contesting the present appeal.
5. Both the parties have filed their respective affidavit pursuant to the direction of this court.
6. Ld counsel for both the parties have argued the matter at length. Ld counsel for the appellant/ husband has argued on the lines of the averments as made in the appeal. Written submissions/objections/ arguments have been filed on behalf of the ld counsel for the respondent /wife .
7. Ld counsel for the appellant/husband has placed reliance upon following authorities:-
a)(2009) ILR 2 Delhi 246 Manish Kumar vs Pratibha
b)AIR 2003 Madras 212, Manokaran vs M Devaki Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 4 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs
c) Dmanpreet Kaur vs Indermeet Juneja, CRL Revision Petition no. 344/11, date of decision 14.5.2011.
8. Ld counsel for the respondent /wife is relying upon following authorities :-
a) Durga Prasad Ray vs Meenu , 191 (2012) DLT 275.
b) Sanjeev Sangwan vs Sangeeta Sangwan , 143(2007)DLT 306.
c) Baby Rupali & Anr vs Rajesh Grover & Ors , 11(2005) DMC 531.
d) Ridhima Juneja vs Deven Juneja & Ors, Crl MC no.2748/2010 (DHC),date of decision 30.10.2012.
e)Vinny Parmar vs Paramvir Parmar (SC), Civil appeal 5831-5833 of 2011, date of decision 20.7.2011 .
f)Rajeev Preenja vs Sarika & ors ,159(2009) DLT 616 .
g) Puneet Kaur vs Inderjeet Singh Sawhney (DHC),CM(M) 79/2011, Date of decision 12.9.2011.
h) Anu Kaul vs Rajeev Kaul ( SC), Civil Appeal 1789 -179 of 2009 .
i) Ashish Gupta vs Nalini Gupta (DHC), CM(M) 598/2008 , date of decision 13.4.2009
j) Neeta Rakesh Jain vs Rakesh Jeetmal Jain , AIR 2010 SC 3540.
k) Sh Bharat Hegde vs Smt Saroj Hegde ( DHC) , CM(M) 40/05 date of decision 24.4.2007.
l) Smt Meenu Chopra vs Deepak Chopra , 92( 2001) DLT 873 Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 5 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs
m) Smt Renu Jain vs Mahavir Prasad Jain , AIR 1987 Delhi 48.
n) Maulana Salim vs Tamizan( Delhi), 2014 (1) JCC 724.
9. I have heard the ld counsel for the appellant/husband and respondent/wife. I have perused the record including the Trial Court Record and have also gone through the judicial authorities as relied upon by the parties.
10. Alongwith the present appeal , appellant/husband has also moved an application u/s 5 of the Limitation Act seeking condonation of delay in filing the appeal. Vide this application a request has been made to condone the delay which arose in filing the appeal preferred against the impugned order dated 09.11.2012.
11. Respondent/wife has filed reply to the aforesaid application taking various preliminary objections and on merits also and it was prayed that application of the appellant/husband may kindly be dismissed.
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12. The impugned order is dated 09.11.2012. It is not in dispute that present appeal has been filed on 22.4.2013. The appeal has been filed u/s 29 of the Act.
As per section 29, appeal lie to this court within 30 days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent as the case may be whichever is later.
13. From the Trial Court Record, it is noticeable that when the impugned order was passed i.e 09.11.2012, ld counsel for the appellant/husband , who is the respondent before ld trial court, was present.
14. On 09.11.2012, after passing the impugned order ld Trial Court adjourned the case for 30.1.2013. On 30.1.2013, none for the appellant/husband was present and case was adjourned for 5.3.2013. On that day some proxy counsel for the appellant/husband was present in the morning. This all shows that appellant /husband was well aware about the impugned order on the day when it was passed. Rather it is not the case of the appellant/husband , he was not aware of the passing of Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 7 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs impugned order. That being so, the limitation for filing the present appeal would start from 09.11.2012 itself and the same should have been filed at the most by 09.12.2012 in terms of section 29 of the Act. But it has been filed on 22.4.2013 therefore, there is delay of 134 days.
15. The reasons for not filing the appeal within the time as prescribed have been given in para no.2 of the application under consideration which is being reproduced as follows:
"... That the appellant/applicant is residing in Singapore where he is working and recently he visited India and thereafter he contacted the present counsel and instructed the present counsel for preparation of appeal for instituting the same. Thereafter the counsel drafted the appeal. Hence because of non-presence of appellant in India and thereafter for preparation of appeal there occurred some delay in filing the accompanying appeal..."
16. From the aforesaid averments made in para no.2, it is crystal clear that the appellant has not given any cogent reason for not filing the present appeal within limitation. Appellant/husband states that he is working Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 8 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs in Singapore . He recently visited India thereafter he contacted the present counsel and instructed the counsel for preparation of the appeal for filing the same. Thereafter, ld counsel drafted the appeal and because of non-presence of the appellant/husband in India, the appeal could not be prepared and some delay occurred.
17. Appellant /husband has not been able to explain as to when he came to India from Singapore? When he contacted the ld counsel? When the appeal was drafted or prepared by the present counsel ? No particular or specific date has been assigned to aforesaid reasoning. There is no explanation much less any justifiable explanation given in the body of the application. Appellant/husband is referring "present counsel". It has not been explained to whom appellant/husband met for preparation of the appeal . It is evident that the counsel who has prepared the appeal is not the arguing counsel.
18. In a case titled a Esha Bhattacharjee vs Raghunathpur Nafar Academy & othrs, (2013 ) 12 SCC 649, Hon'ble Supreme Court laid down various principles inter-alia :
Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 9 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs xxxxx V ) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact .
vi) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally and unfettered free play .
Xxxxx IX) The conduct, behaviour and attitude of a party relating to its enaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the court are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go bye in the name of liberal approach .
xxxxx XVII) The increasing tendency to perceive delay as a non serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner required to be curbed, of course , within legal parameters.
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19. In the present case, appellant husband is well qualified person and is possessing the degree of MS ( Software Systems). It is not the case that he is not being represented by any counsel . I am of the considered opinion that the appellant/husband has failed to satisfy this court that he had sufficient cause for not preferring the present appeal within the stipulated period of time . Sufficient cause means a cause beyond the control of a party invoking the aid of the section. Condonation of delay is a matter of discretion of the court but such discretion can not be exercised merely on asking of the party. If the explanation does not smack of malafides then the party can seek favour. However, when the party made inordinate delay then he has to explain the same to the satisfaction of the court which is failing in the present case. It is also settled principle that if the party is not vigilant about his right he must explain every days delay.
20. I may also take help of decision of Hon'ble High Court of Delhi in a case titled as Maulana Saleem vs Ramizan , AIR 2014(1)JCC 724 , as relied upon by the ld counsel for the respondent/wife wherein para no. 7 it was observed that :
Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 11 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs "It is not as a matter of routine that the courts must grant condonation of delay: unless and until, there is a justifiable and cogent explanation made out for the delay, the delay has not to be condoned : this is especially keeping in view the fact that a valuable right accrues to the opposite party when in the entire period of limitation, the impugned order has not been assailed giving a fairly rightful reason for the opposite party to hold that the order has no attained a finality. There is no explanation much less any justifiable explanation given in the body of the application. It is bereft of all particulars and details. No date has been given. The names of the counsel no the clerk who had kept the file of the petitioner with him has been detailed; moreover the same counsel was appearing for the petitioner at the time of disposal of the petition on 11.5.2012 and continued even thereafter, he had also applied for the certified copy of the impugned order which as noted supra was much after the period of limitation. The counsel has failed to given any reason for the same. The date when the first appeal was filed which was under mistaken advice and when it was withdrawn has also not been given. The entire delay of 197 days which is almost half a year having been remained unexplained, the petitioner is not entitled to this discretionary relief.
21. In these circumstances, since delay has Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 12 of 13 ) CA 8/14 D.O D 24.5.2014 Anil Kumar vs Shilpa Modi & anrs not been satisfactorily explained and there was no sufficient cause of delay, therefore, the application moved u/s 5 of Limitation Act stands dismissed and consequently , it is held that the present appeal is barred by limitation and same is hereby dismissed.
22. As stated herein above, both the ld counsel for the parties have argued the matter on merits also at length. This court has already indicated not to condone the delay of 134 days in filing the present appeal, therefore, it is not deemed necessary to re-examine the controversy between the parties on merit.
23. Copy of this order alongwith TCR be sent back to the Trial Court .
24. Appeal file be consigned to record room.
Announced in the open (Rajesh Kumar Goel) court today i.e 24.5.2014 ASJ-5,North/Rohini Court Crl Appeal No. 8/14 Anil Kumar Vs Shilpa Modi & anrs (Page 13 of 13 )