Nimmagadda Jagajjanani vs Nimmagadda Apparao

This petition is directed against the order dismissing an application for condonation of the delay of 593 days in filing the application to set aside an ex parte decree of divorce. This is an unfortunate case, where there was estrangement between the husband and wife after they lived together for about 19 years after their marriage and they begot two children, who are now aged 24 and 25 years. The husband filed OP No.40/91 on the file of the senior Civil Judge, Gudiwada seeking divorce on the ground of cruelty on the part of the wife. The wife put in appearance by engaging an advocate, but as she failed to file a counter-affidavit despite grant of adjournments repeatedly, she was set ex parte on 20-11-1991 and an ex parte decree of divorce was passed on 4-3-1992. According to the wife she could not file the counter in the main case as she fell down from the terrace and sustained serious spinal injury which necessitated her hospitalisation for a long time. According to her, she came to know about the ex parte decree sometime in October, 1992 and she instructed her Counsel to file an application for setting aside the ex parte decree. She was given to understand that such an application was filed, but it appears that actually no such application was filed. On 21-12-1992 she file Maintenance Case No.58 of 1992 in the I Addl. Judicial Magistrate''s Court at Gudiwada u/s 125 Cr.PC for grant of maintenance, in which she made a reference to the ex parte decree of divorce and also stated that she filed an application to set aside the same which is pending. But, as there was no such application, the husband remarried on 7-2-1993. Having come to know about the same, the wife gave a police complaint against the husband for bigamyon 11-6-1993. In that complaint also she staled that the application filed by her for setting aside the ex parte decree was pending. On 16-11-1993 she withdrew MC 58 of 1992. On the next day i.e., on 17-11-1993 she filed the instant application for setting aside the ex parte decree of divorce along with IA No. 1031 of 1993 for condonation of delay of 593 days in filing the main application to set aside the ex parte decree. In the affidavit filed in support of the application for condonation of delay she pleaded that because of the injury sustained by her and her subsequent-hospitalisation she could not take steps immediately and that she has not yet recovered fully from the said injury. The lower Court dismissed the application for condonation of delay observing that it is clear from the documentary evidence on record that the petitioner was not hospitalised during the years 1992 and 1993 and she attended the Magistrate''s Court in Gudiwada during the years 1992 and 1993 in connection with MC No.58 of 1992 filed by her and there is no truth in her contention that she could not file the petition to set aside the ex parte decree within time due to her hospitalisation. Accordingly, lower Court dismissed the application holding that the petitioner failed to show sufficient cause for not making the application within time.

In this revision petition, the learned Counsel for the petitioner assailed the Order of the lower Court by contending that the lower Court failed to consider Exs.A1 to A2, which clearly establish that the ex parte decree was obtained by the husband by playing fraud on the petitioner and that the ex parte decree is liable to be set aside as the same was passed without any regard for the conditions mentioned in Section 23 of the Hindu Marriage Act. It may be mentioned that Ex.A1 is a certificate dated 28-7-1992 said to have been issued by the Revenue Divisional Officer, Nizamabad to the effect that on a complaint made by the petitioner herein to the District Collector, Nizamabad, complaining of harassment and ill-treatment from her husband, both parties were called to the Revenue Divisional Officer''s Office and their problems were discussed at length and it was decided to continue them in one residence for some period and accordingly from October, 1991 till the end of June, 1992, both lived in one place and have settled their issues.

The learned Counsel for the petitioner has contended that while the parties were living together the ex parte decree was obtained in March, 1992 by playing fraud. Ex.A2 is a letter dated 14-1-1993 said to have been addressed by the clerk of the petitioner''s advocate to one M. Narahari. Though the letter is purported to be addressed to M. Narahari, the contents of the letter go to show that it is really addressed to the petitioner. The said letter appears to have been written informing the petitioner about the developments in the MC filed by her for maintenance. There is however, a reference to the sub-Court papers and it is stated that the same will be sent to Apparao i.e., the respondent herein, after the subordinate Judge returns to duty on 22nd January, 1993. According to the learned Counsel for petitioner, this refers to the application for setting aide the ex parte decree and this clearly shows that the petitioner was made to believe that the said application was, in fact, filed in Court and the same was pending.

The learned Counsel for the respondent, however, contends that in the affidavit filed in support of the petition there was no reference, whatsoever, to any of these documents and the sole ground on which the petition for condonation of delay was filed was that the petitioner was hospitalised and she could not therefore file the application within time. It is also contended that Ex.Al is inadmissible in evidence and it has no sanctity whatsoever, as the Revenue Divisional Officer is not at all competent to give any such certificate and he was also not examined to prove the same. It is further contended that in any case Ex.Al and A2 are not entitled to any weight as no evidence can be looked into in the absence of any plea of fraud.

It is finally contended by the learned Counsel for the respondent that the law of limitation has to be strictly applied and the period of limitation cannot be extended on equitable considerations and that there are no valid grounds, whatsoever, to interfere with the discretion exercised by the lower Court in refusing to condone the inordinate delay of 593 days. It is also submitted that since the husband has lawfully contracted a second marriage on 7-2-1993 itself, it will give rise to unnecessary complications and lead to great hardship if the ex parte decree were to be set aside at this stage.

I have given my anxious consideration to the rival contentions advanced by both the learned Counsel appearing for the parties. In an application filed u/s 5 of the Limitation Act seeking condonation of delay there are two competing considerations. On the one hand there is the well settled principle that the expression "sufficient cause" should receive a liberal construction so as to advance the cause of justice and that the Court should not adopt a pedantic of hypertechnical approach. On the other hand, there is the equally well settled principle that the law of limitation may harshly affect a particular party but it has to be applied with all its vigour when the statute so prescribed and the Courts have no power to extend the period of limitation on equitable grounds. It is always a question of balancing these two Principles in their application to the facts of a given case. In the instant case though the petitioner put in appearance in the OP through an advocate for one reason or the other she did not file a counter, despite giant of several adjournments and ultimately she was set ex parte on 20-11-1991 and after examining the husband the ex parte decree was passed on 4-3-1992. Even on her own showing the petitioner had knowledge about the passing of the ex parte decree in the month of October, 1992 itself and thereafter she filed a case for maintenance and she was found to be regularly attending the Magistrate''s Court in connection with the said case. Under such circumstances, the lower Court felt there was no justification for not filing the application to set aside the ex parte decree till 17-11-1993 and that the explanation offered by the petitioner for the delay was not convincing. Though, according to the petitioner she instructed her Counsel to file the application immediately but her Counsel did not file the same and fraud was played on her, she did not take any such plea in the affidavit filed by her in support of the application. The parties have been estranged and they have been living separately for the past several years and the husband has also contracted a second marriage on 7-2-1993. There appears to be practically no scope for the parties to live together now.

Having regard to these facts and circumstances, I am not inclined to interfere with the discretion exercised by the lower Court in refusing to condone the delay in filing the application to set aside the ex parte decree, as such a course, in my view, far from helping matters, would only create further complications. On an over all view of the facts and circumstances of the case I feel that it is a fit case where the petitioner should be granted maintenance liberally. It is stated that as per the orders passed in MC filed by her she is now being paid maintenance at the rate of Rs.500/- per month. It is also stated that the petitioner has since filed a separate application for the grant of permanent alimony in the sub Court which is still pending enquiry. The husband is working as Senior Assistant in the Revenue Department drawing gross emoluments of about Rs.8000/- per month. He has two major sons and also the second wife to support. Without prejudice to the contentions of either party in the application for grant of permanent alimony and subject to the final orders that may be passed in the said application, I feel that it would be just and proper to direct the respondent-husband to pay a sum of Rs.2000/- per month to the petitioner as maintenance commencing from the month of July, 1999. Such maintenance to be paid on or before tenth of every month. In default of such payment the amount can be recovered from husband''s salary every month. It is hoped that the learned Subordinate Judge, Gudiwada, will dispose of the application for permanent alimony as expeditiously as possible, preferably within three months from today, on its own merits. Both parties shall appear before the learned sub-Judge and cooperate in the early disposal of the said application.

With these directions, CRP is disposed of. No costs.