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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
AND
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.P(MD)NO.2440 OF 2019
in
C.M.A(MD)SR.No.9585 of 2019
and
C.M.A(MD)SR.No.9585 of 2019
D.Vijaya :Petitioner/Appellant/Respondent
.vs.
V.Balamurugan : Respondent/Respondent/Petitioner
PRAYER in C.M.P(MD)No.2440 of 2019: Civil Miscellaneous
Petition filed under Section 19(3) of the Family Courts Act, praying
this Court to condone the delay of 1239 days in filing the above
Civil Miscellaneous Appeal.
PRAYER IN C.M.A(MD)SR.NO.9585 OF 2019:Civil
Miscellaneous Appeal filed under Section 19 of the Family Courts
Act, against the fair and decretal order made in H.M.O.P.No.122 of
2005, dated 08.09.2015, on the file of Family Court, Madurai.
For Petitioner :Mr.R.Venkatesan
for M/s.Right Law Associates
For Respondent : Mr.D.Sivaraman
COMMON ORDER
*********************
[Order of the Court was made by K.KALYANASUNDARAM.,J.]
Heard Mr.R.Venkatesan, learned counsel appearing for the
Petitioner/appellant and Mr.D.Sivaraman, learned counsel
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appearing for the respondent and perused the materials placed
before this Court.
2.This Civil Miscellaneous Application has been filed to
condone the delay of 1239 days in filing the above Civil
Miscellaneous Appeal.
3.It is not in dispute that the marriage between the Petitioner
and respondent was solemnized on 26.2.1999 as per Hindu Rites
and Customs. Out of their wedlock, a male child was born to them
on 20.1.2000. The respondent/husband filed a Petition in
H.M.O.P.No.122 of 2005, before the file of Family Court, Madurai,
for divorce on the ground of cruelty and desertion. After contest,
the Petition was allowed on 8.9.2015.
4.The Petitioner would claim that after the divorce
proceedings, the Petitioner had approached the respondent for re-
union, which was also agreed by the respondent. But he was post-
poning the event to get the concurrence from his relatives. Since
she was waiting for a long time, the delay had occurred.
5.The respondent has filed a detailed counter denying the
allegations made in the affidavit and it is also stated that after the
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order passed in H.M.O.P.No.122 of 2015 on 8.9.2015, the Petitioner
filed a complaint under the provisions of the Protection of Women
from SectionDomestic Violence Act before the Additional Mahila Court in
M.C.No.73 of 2016. But the above-said material fact has been
suppressed in this affidavit. According to the respondent, the
Petitioner left the matrimonial home on 28.05.2001 and thereafter,
she did not have any intention to return the matrimonial home and
hence, the divorce petition was filed.
6.The learned counsel for the Petitioner as well as the
learned counsel for the respondent have reiterated the averments
made in the affidavit and the counter affidavit respectively.
7.The Honourable Apex Court, in the case of Esha
Bhattarcharjee .vs. Managing Committee of Raghnathpur
Nafar Academy and others made in Civil Appeal Nos.
8183-8184 of 2013, has framed guidelines for considering the
application filed for condoning the delay, which reads as under:
”15. From the aforesaid authorities the
principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with
an application for condonation of delay, for the courts
are not supposed to legalise injustice but are obliged
to remove injustice.
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(ii) The terms “sufficient cause” should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and
pivotal the technical considerations should not be
given undue and uncalled for emphasis.
(iv) No presumption can be attached to
deliberate causation of delay but, gross negligence on
the part of the counsel or litigant is to be taken note
of.
(v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant and
relevant fact.
(vi) It is to be kept in mind that adherence to
strict proof should not affect public justice and cause
public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no
real failure of justice.
(vii) The concept of liberal approach has to
encapsule the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate
delay and a delay of short duration or few days, for
the former doctrine of prejudice is attracted whereas
to the latter it may not be attracted. That apart, the
first one warrants strict approach whereas the
second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a
party relating to its inaction or negligence are
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relevant factors to be taken into consideration. It is
so as the fundamental principle is that the courts 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 by in the name of liberal
approach.
(x) If the explanation offered is concocted or
the grounds urged in the application are fanciful, the
courts should be vigilant not to expose the other side
unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets
away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of
limitation.
(xii) The entire gamut of facts are to be
carefully scrutinized and the approach should be
based on the paradigm of judicial discretion which is
founded on objective reasoning and not on individual
perception.
(xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
16.To the aforesaid principles we may add some
more guidelines taking note of the present day
scenario. They are:
(a) An application for condonation of delay
should be drafted with careful concern and not in a
half hazard manner harbouring the notion that the
courts are required to condone delay on the bedrock
of the principle that adjudication of a lis on merits is
seminal to justice dispensation system.
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(b) An application for condonation of delay
should not be dealt with in a routine manner on the
base of individual philosophy which is basically
subjective.
(c) Though no precise formula can be laid down
regard being had to the concept of judicial discretion,
yet a conscious effort for achieving consistency and
collegiality of the adjudicatory system should be
made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay
as a non-serious matter and, hence, lackadaisical
propensity can be exhibited in a non-challant manner
requires to be curbed, of course, within legal
parameters.
From the above guidelines, it is clear that if the delay is for a short
period, a liberal approach can be adopted and for the longer
period, it should be strictly proved by the Petitioner.
8.In the instant case, except the bald and vague allegation,
the Petitioner has not produced any material to substantiate her
case. It is also pertinent to note that the complaint filed under the
SectionDomestic Violence Act is now posted for arguments. If the case of
the Petitioner is true, then she would not have filed the complaint
under the SectionDomestic Violence Act.
9.Keeping in view the facts narrated above and the decision
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of the Apex Court, We are of the opinion that the Petitioner has not
shown sufficient cause to condone the enormous delay and hence
the the Petition is liable to be dismissed and accordingly, it is
dismissed. Consequently, the Civil Miscellaneous Appeal is rejected
at SR stage itself. No costs.
[M.K.K.S,J.] [T.K.,J.]
23.04.2019
Index:Yes/No
Internet:Yes/No
vsn
To
The Judge,
Family Court,
Madurai.
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K.KALYANASUNDARAM, J.
AND
T.KRISHNAVALLI, J.
vsn
COMMON 0RDER MADE IN
C.M.P(MD)NO.2440 OF 2019
in
C.M.A(MD)SR.No.9585 of 2019
and
C.M.A(MD)SR.No.9585 of 2019
23.04.2019
http://www.judis.nic.in
