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Naveen Goswami vs Smt. Kamla Goswami on 14 June, 2017


Second Appeal No. 206/2015
Naveen Goswami …. Appellant

Smt. Kamla Goswami …. Respondent
Mr. Neeraj Garg, Advocate, for the appellant.
Mr. B.D. Pande and Mr. H.C. Pathak, Advocates, for the respondent.

June 14, 2017

Hon’ble Servesh Kumar Gupta, J.

Having heard learned Counsel for the parties, a
preliminary objection has been raised on behalf of the
respondent defendant that since the rejection of a delay
condonation application, as has been done by the
impugned order dated 13.11.2015, is not a decree, so this
second appeal cannot be preferred under Section 100 of the
Code of Civil Procedure. Learned Counsel for the defendant
respondent has also taken this Court to Section 101 CPC,
which envisages that no second appeal shall lie except on
the grounds mentioned in Section 100.

Learned Counsel for the appellant plaintiff refuted
the above argument by relying on a judgment rendered by
the Hon’ble Apex Court in Shyam Sundar Sharma v.
Pannalal Jaiswal Others, (2005) 1 SCC 436, wherein it
has been categorically held that the rejection of the delay
condonation application tantamount to passing/affirming
of a decree. So, it can be challenged under Section 100
CPC, as has been done in the instant case. For the sake of
convenience, paragraph 10 of the said verdict is reproduced
as under:

“The question was considered in extenso by a
Full Bench of the Kerala High Court in Thambi
vs. Mathew (1987 (2) KLT 848). Therein, after

referring to the relevant decisions on the
question it was held that an appeal presented
out of time was nevertheless an appeal in the
eye of law for all purposes and an order
dismissing the appeal was a decree that could
be the subject of a second appeal. It was also
held that Rule 3A of Order XLI introduced by
Amendment Act 104 of 1976 to the Code, did
not in any way affect that principle. An appeal
registered under Rule 9 of Order XLI of the
Code had to be disposed of according to law
and a dismissal of an appeal for the reason of
delay in its presentation, after the dismissal of
an application for condoning the delay, is in
substance and effect a confirmation of the
decree appealed against. Thus, the position
that emerges on a survey of the authorities is
that an appeal filed along with an application
for condoning the delay in filing that appeal
when dismissed on the refusal to condone the
delay is nevertheless a decision in the appeal.”

I am convinced with the submissions of the learned
Counsel for the appellant plaintiff and considering the
above ratio propounded by the Hon’ble Apex Court, this
second appeal is accepted on the question of its
admissibility and it is admitted for hearing on the following
substantial question of law formulated at point no. A in the
memo of appeal and the same is reproduced below:

“Whether a party should be non suited on
hyper technical ground of limitation when
explanation for delay does not smack of
malafides and cause of substantial justice
deserves to be preferred over technical

consideration considering that a litigant does
not stand to benefit by resorting to delay?”

Having heard on the merits, it transpires that the
marriage of the couple was solemnized on 27.11.2002.
Divorce petition was filed by the appellant under Section 13
of the Hindu Marriage Act on 3.11.2006, which could be
adjudicated resulting in its dismissal on merits by the Civil
Judge (Sr. Div.) on 6.4.2012. First appeal against this
judgment could be filed in August 2015 with the delay of 3
years and 42 days. The first appeal was rejected on the
ground of inordinate delay.

It has been argued by the learned Counsel for the
appellant plaintiff that initially the maintenance @ Rs.
1500/- per mensem was awarded to the respondent Smt.
Kamla Goswami. Subsequently, it was enhanced to the
tune of Rs. 9000/- in 2014-15. Such enhancement of the
maintenance was challenged by way of approaching the
High Court. So, the appellant plaintiff remained indulged in
pursuing those matters pertaining to the maintenance and
being in the private job, he could not make out on account
of sundry restraints including financial one in preferring
the first appeal against the judgment and order dated
6.4.2012 because the whole concern of the appellant
plaintiff was to resist and desist the course of law in
granting the enhanced maintenance to the tune of Rs.
9000/- per month. It has been further submitted by the
learned Counsel for the appellant plaintiff that recently,
such amount has again been enhanced to the tune of Rs.
13,000/- per mensem. So, the whole object of Smt. Kamla
Goswami is to keep on receiving this amount of enhanced
maintenance for the entire life and closing the chapter of
judicial contemplation on the question of divorce. Adopting

such recourse by Smt. Kamla Goswami will be drastically
fatal to the appellant.

Learned Counsel of the appellant plaintiff has
heavily relied upon the judgment of the Hon’ble Apex Court
rendered in Collector, Land Acquisition, Anantnag Another
v. Mst. Katiji Others, 1987 0 AIR (SC) 1353, wherein the
principles of test on consideration of delay condonation
application have been propounded. Such propositions of
the Hon’ble Apex Court are as under:

“1. Ordinarily a litigant does not stand to
benefit by lodging an appeal late.

2. Refusing to condone delay can result in a
meritorious matter being thrown out at the
very threshold and cause of justice being
defeated. As against this when delay is
condoned the highest that can happen is that
a cause would be decided on merits after
hearing the parties.

3. “Every day’s delay must be explained” does
not mean that a pedantic approach should be
made. Why not every hour’s delay, every
second’s delay? The doctrine must be applied
in a rational common sense pragmatic

4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate delay.

5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala

fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious

6. It must be grasped that judiciary is
respected not on account of its power to
legalize injustice on technical grounds but
because it is capable of removing injustice and
is expected to do so.”

I think the grounds, as have been enunciated by
the appellant plaintiff, pass the test on the anvil of the
propositions laid down by the Hon’ble Apex Court (supra).
Therefore, I allow this second appeal, set aside the
impugned order dated 13.11.2015, condone the delay and
remand the matter to the first appellate court with
direction that the first appeal of the plaintiff appellant shall
be restored to its original number and the same shall be
heard and adjudicated on merit. I answer the substantial
question of law accordingly in favour of the appellant.

Let the LCR be sent back.

(Servesh Kumar Gupta, J.)

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