Chitra vs K. Saravanan

K. Ravi Chandra Baabu, J.—This Civil Revision Petition is filed against the Order made in LA. No. 222 of 2008 in H.M.O.P. No. 93 of

2004 on the file of Principal Sub Court, Villupuram wherein and whereby the Application filed by the Petitioner herein u/s 5 of the Limitation Act,

seeking to condone the delay of 1382 days in filing a Petition to set aside the ex parte decree of restitution of conjugal rights, was rejected. The

Petitioner is the Wife and the Respondent is the Husband. It is seen from the materials placed before this Court by both sides that the Respondent

herein filed H.M.O.P. No. 93 of 2004 u/s 9 of the Hindu Marriage Act seeking for a decree of restitution of conjugal rights against the Petitioner

herein. On 2.2.2005, an ex parte decree came to be passed in the said Petition. As the Petitioner herein did not comply with the decree granted

for restitution of conjugal rights, the Respondent/Husband subsequently filed H.M.O.P. No. 45 of 2006, seeking for divorce. The said Petition for

divorce, after contest, was decreed on 23.12.2008. Before the grant of such decree, the Petitioner herein filed LA. No. 222 of 2008 in H.M.O.P.

No. 93 of 2004 on 14.12.2008 u/s 5 of the Limitation Act, seeking to condone the delay of 1382 days in filing the Set Aside Petition. The Court

below has rejected the said Application by observing that no sufficient cause is shown by the Petitioner for condoning the delay of 1382 days.

Aggrieved against the same, the present Civil Revision Petition is filed.

Heard the learned Counsel appearing for the Petitioner as well as the Respondent.

Learned Counsel appearing for the Petitioner contended that the Petitioner has not taken steps to set aside the ex parte decree passed against

the decree for restitution of conjugal rights only on the assurance given by the Husband that the same was filed only to intimidate the Petitioner and

that he would withdraw the same and the Petitioner need not worry about such decree passed against her and therefore, when such assurance was

given by the Husband, the Court below was not justified in rejecting the Application by observing that the Petitioner has not given any sufficient

cause. Learned Counsel also submitted that the Court below has not at all discussed the said contention raised by the Petitioner.

Per contra, it is the contention of the learned Counsel appearing for the Respondent that when a decree of restitution of conjugal rights was

granted as early as on 2.2.2005, the Petitioner neither complied with the decree nor challenged the same or filed any Application to set aside the

decree immediately. Therefore, taking such non compliance as one of the grounds, the Respondent has filed H.M.O.P. No. 45 of 2006, seeking

for divorce. It is specifically stated in the Divorce Petition itself about the ex parte decree passed on 2.2.2005 in Section 9 Application. He also

brought to my Notice that the Petitioner herein has filed Counter in H.M.O.P. No. 45 of 2006 as early as on 1.11.2006 and at Paragraph No. 13,

it is specifically stated by her that she is taking steps to set aside the ex parte Order passed in the Section 9 Application. Thus, the learned Counsel

submitted that the Petitioner herein had the knowledge about the ex parte Order passed in the Section 9 Application as early as on 1.11.2006 itself

when she filed a Counter Affidavit in H.M.O.P. No. 45 of 2006. However, without filing any such Application immediately, she had chosen to file

the same only in the month of December 2008 by contending as if she came to know about the ex parte decree only on 22.12.2008, which is not

factually correct and a false statement.

The facts which are not disputed between the parties are as follows:

The Respondent herein filed H.M.O.P. No. 93 of 2004 u/s 9 of the Hindu Marriage Act seeking for restitution of conjugal rights. On 2.2.2005, an

ex parte decree came to be passed in the said Petition. Only to set aside the said ex parte decree, the Petitioner herein filed the present Application

in LA. No. 222 of 2008 seeking to condone the delay of 1382 days in filing such Set Aside Petition. It is also admitted by both sides that the

Respondent has also filed H.M.O.P. No. 45 of 2006 seeking for divorce in which a decree, after contest, came to be passed on 22.12.2008.

Therefore, what is to be seen is as to whether the Petitioner has given sufficient cause for condoning the delay of 1382 days in filing the Set Aside

Petition. It is not disputed that H.M.O.P. No. 45 of 2006 came to be filed by the Respondent on 5.4.2006 and in which, the Petitioner herein also

filed the Counter as early as on 1.11.2006. A perusal of the Petition filed by the Respondent in H.M.O.P. No. 45 of 2006 at Paragraph No. 8

would show that he has specifically stated about the ex parte decree passed on 2.2.2005 in H.M.O.P. No. 93 of 2004, filed for restitution of

conjugal rights. To the said Petition, the Petitioner herein has filed Counter, in which she has specifically admitted about the knowledge of the ex

parte Order passed in H.M.O.P. No. 93/2004 at Paragraph No. 13 and however stated that she is taking steps to set aside the same. Even

though she filed the Counter as early as on 1.11.2006, the fact remains that the Petitioner has not taken steps till 14.12.2008 to set aside the ex

parte Order. On the other hand, the Petitioner has filed the Petition u/s 5 of Limitation Act by contending that she had knowledge about the ex

parte Order only on 22.12.2008, which is factually not a correct-statement and in fact it goes contrary to her own statement made in the Counter

Affidavit filed in H.M.O.P. No. 45 of 2006 as observed above. Therefore, when the Petitioner had knowledge as early as on 1.11.2006 itself and

having not taken any steps to file the Set Aside Petition immediately, I find that the Court below is justified in rejecting the Application as the

Petitioner has not given sufficient cause. The Petitioner''s contention that the Husband had given assurance for not executing the decree of conjugal

rights and therefore, she did not take steps to file Set Aside Petition immediately cannot be accepted as a true statement since she did not make

such averment in her Counter filed in Divorce Petition. At any event, even assuming such statement is true, the fact remains that the Petitioner did

not file such Application atleast immediately after filing the said Counter.

No doubt, it is not necessary that each and every delay has to be explained. But at the same time, when the delay is enormous, it is for the

Petitioner to show sufficient cause by acceptable material evidence and prove the same. When her own Counter filed as early as on 1.11.2006

goes contrary to her statement made in the present Petition, the Court below has rightly rejected by the Application by exercising its discretionary

power. Since the delay is enormous and it is also proved by the other side that the Petitioner had knowledge about the ex parte order as early as in

the month of November 2006 itself, I find that the Order passed by the Court below does not warrant any interference. Accordingly, the Civil

Revision Petition is liable to be dismissed.

Learned Counsel appearing for the Petitioner, however, submitted that the dismissal of the Civil Revision Petition should not influence the mind

of the Appellate Court, where she has filed Appeal against the decree of divorce. Needless to say that this Court has considered only the Order

made in Section 5 Application and the reasons stated therein. However, any observations made in this Order shall not influence the mind of the

Appellate Court while deciding the Appeal filed against the divorce. With this observation, the Civil Revision Petition is dismissed. No costs.