Paresh Ramesh Chandra Shashtri vs State Of Gujarat

V.P. Patel, J

ORDER IN NOTE FOR SPEAKING TO MINUTES

Perused the Note for Speaking to Minutes.

As per Office Note dated 20.6.2019 Criminal Misc. Application No. 1 of 2019 in Criminal Revision Application No. 1441 of 2018 is not disposed of.

In view of order passed in the main matter i.e. Criminal Revision Application No. 1441 of 2018 dated 8.5.2019, this application does not survive and

stands disposed of accordingly.

The Note for Speaking to Minutes stands disposed of accordingly.

(V. P. Patel, J)

The present applicantÂhusband has filed this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal

Procedure, 1973 [hereinafter to be referred to as, “CrPCâ€], the petitionerÂoriginal Opponent no. 2Âhusband has challenged legality and validity

of an Order dated 29th August 2018 passed below Application Exh. 1 in Domestic Violence Application, being Criminal Misc. Application [Delay] No.

7631 of 2017, by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad.

Brief facts :

The present revision application arises in the following factual matrix, which in nutshell reads, thusÂ​

The marriage of the present petitioner with the respondent no. 2 was solemnized on 11th February 1996. Prior to their marital ties, the petitionerÂ‐

husband was having a daughter namedÂDevanshi, born out of an earlier wedlock. However, from their present wedlock, they did not have any issue.

Due to certain matrimonial accords, the present respondent no. 2 filed a Domestic Violence Application, being Criminal Misc. Application No. 120 of

2015 before the Metropolitan Magisterial Courts at Ahmedabad, inter alia, seeking relief; as provided under Sections 18, 19, 20 & 22 of the Protection

of Women from Domestic Violence Act, 2005 [hereinafter referred to as, “the DV Actâ€]. The said proceedings came to be partly allowed by the

learned Chief Metropolitan Magistrate, Court No. 22, Ahmedabad vide Order dated 29th September 2017, whereby, under Section 19 of the Act, the

present petitioner came to be directed not to interfere in the possession of residence in which the present respondent no. 2 inhabitats. However, when

no relief under Sections 18, 20 & 22 of the DV Act came to be granted, the respondent no. 2Âwife, being aggrieved and dissatisfied with the said

order dated 29th September 2017, preferred Criminal Misc. Application [Delay] No. 7631 of 2017 before the City Sessions Court at Ahmedabad,

which eventually came to be allowed by the learned Additional Sessions Judge, Court No. 20 vide Order dated 29th September 2018 passed below

Exh. 1, giving rise to the present revision proceedings.

Rule. Learned APP waives service of rule on behalf of respondentÂState. Mr.Nisarg N. Trivedi waives service of rule on behalf of respondent

Nos.2 to 5.

Submission of the ApplicantÂ​husband :

Learned advocate Shri Shashikant S Gade, appearing for the petitionerÂhusband assailed the impugned order dated 29th September 2018 passed

below Exh. 1, terming it to be against the settled provisions of law and even against the evidence available on the record. Counsel for the petitioner

vehemently contended that the Court below has committed grave error in condoning gross delay of

51 days, when there was no sufficient explanation coming fore on the record of the matter. He added that the Court below ought to have observed

that the respondent no. 2 was competent enough, when she goes to the Police Station for filing the complaint; goes to the Bank for

deposits/withdrawals, etc., and stays in different room of the same house in which the petitionerÂhusband resides, and therefore, reliefs sought for

against the petitionerÂhusband under Sections 18, 20 & 22 of the DV Act were not sustainable. Counsel for the petitioner further contended that

when there was no document describing any financial difficulty or mental disturbance at the end of the respondent no. 2Âwife, her plea for

condonation of gross delay of 51 days ought to have been rejected by the Court below by following the settled principles of Limitation Act.

4.1. To substantiate his arguments, counsel for the petitioner revisionists placed reliance upon a decision of the Apex Court. [a] Ramlal, Motilal &

Chhotelal vs. Rewa Coalfields Limited, AIR 1962 SC 36 1and [b] Amar Nath & Ors. vs. State of Haryana & Ors., AIR 1977 SC 218 5[c] Lanka

Venkateshwarlu [D] By Lrs. vs. State of A.P & Ors., [2011] 4 SCC 363.

4.2. Lastly, counsel for the petitioner urged this Court to allow the present revision application, since the impugned order does not contain any valid

reason for allowing the delay condonation application.

Submission of the OpponentÂ​wife :

Per contra, learned advocate Mr. Nisarg N Trivedi appearing for the respondent no.2Âwife strenuously urged this Court to reject the present

application on the plea that soon after the marriage of duo, the petitionerÂhusband started misÂbehaving with the respondent no. 2Âwife and often

illÂtreated her and even sometime, had beaten up and abused her â€" both mentally and physically. This gradual increase in the illÂtreatment meted

out to the respondent no. 2 culminated into institution of an application under Section 12 of the DV Act, which came to be partly allowed by the

Additional Chief Metropolitan Magistrate, Ahmedabad vide order dated 29th September 2017.

According to the learned counsel for the respondent no.2Âwife, when the reliefs sought for under Section 18, 20 & 22 of the DV Act were denied,

the respondent no. 2 preferred an appeal before the District & Sessions Courts, Ahmedabad, being Criminal Appeal No. 490 of 2018 with an

application for condonation of delay, being Cr.M.A No. 7631 of 2017, which has been condoned vide Order dated 29th August 2018, passed below

Exh.1. Learned counsel for the respondentÂwife contended that the present revision application deserves to be rejected when the learned Sessions

Judge has aptly condoned the delay on the basis of established precedents and when there is a strong arguable case of the respondent no. 2Âwife in

an appeal. Counsel for the respondentÂwife submitted that the power to condone delay by enacting Section 51 of the Limitation Act, 1963 have been

correctly exercised by the Court below in order to enable the said Court to do substantial justice to the parties by disposing of the matter on merits.

In support of his arguments, counsel for the respondentÂ​wife placed reliance upon decision of this Court in the case of Dakshin

Gujarat Vij Company Limited vs. Amardeep Association & Ors., reported in [2013] 2 GLR 1399, wherein, it is held that, “...when there is

substance in the main revision application; irrespective of the observation in any other judgments, delay needs to be condoned.â€​

Merits of the case:

Law of limitation on condonation of delay is exhaustively dealt with by Hon’ble Supreme Court in various pronouncement. Firstly, I will deal

with law on the basis of judgment cited by the parties.

Discussing the case law on hand, which came to be duly relied upon by the respective sides, in the case of Ramlal, Motilal & Chhotelal [Supra], the

Hon’ble Supreme Court has observed as under:

“4. ...As has been observed by the Madras High Court in Krishna v. Chattapan (1) ""s. 5 gives the Court a discretion which in respect of

jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well

understood; the words ""sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor

inaction nor want of bona fide is imputable to the appellant.

The context seems to suggest that ""within such period"" means within the period which ends with the last day of limitation prescribed. In

other words, in all cases falling under s. 5 what the party has to show is why he did not file an appeal on the last day of limitation

prescribed. That may inevitably mean that the party will have to show suffi cient cause not only forÂnot filing the appeal on the last day

but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be

called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on

which the appeal is filed. To hold that the expression ""within such period"" means during such period would in our opinion be repugnant in

the context. We would accordingly hold that the learned Judicial Commissioner was in error taking the view that the failure of the appellant

to account for its non diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it 769 from

praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the party's

illness.â€​

Ultimately the Honourable Supreme Court has finally decided as under :

“ 5. In the result the appeal is allowed, the delay of one day made in filing the appeal is condoned, and the case sent back to the Court of the

Judicial Commissioner for disposal on the merits in accordance with law. In the circumstances of this case the appellant should pay the respondent the

costs of this Court. Costs incurred by the parties in the Court of the Judicial Commissioner so far will be costs in the appeal before him.

Appeal allowed. “

In the case of Amar Nath & Ors. [Supra], while allowing the appeal and remanding the mater back to the High Court, the Apex Court held that,

“..the impugned order of the Judicial Magistrate could not be said to be an interlocutory order and does not fall within the mischief of Section 397

[2], and therefore, a revision against this order was fully competent under Section 397 [1] or Section 482 of the Code because the scope of both the

sections in a matter of this kind is more or less the same.â€​

In the matter between Lanka Venkateshwarlua [D] by Lrs.. [Supra], the Hon’ble Supreme Court has held as under :

“26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the

same to be unjustifiable. The concepts such as ""liberal approach"", ""justice oriented approach"", ""substantial justice"" can not be employed

to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our

opinion, the approach 2 adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required

to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use

of mere intemperate language, the High Court resorted to blatant sarcasms.

The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.

Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled

discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The

discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form

the basis of exercising discretionary powers.â€​

Further the Hon’ble Supreme Court has considered the other earlier judgments of Supreme Court are as under :

We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this

country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under

Section 5 of the Limitation Act.

This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors.5

In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of

parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

5 (1987) 2 SCC 107 1

In the case of Sardar Amarjit Singh Kalra (supra), this Court again emphasized that provisions contained in the Order 22 CPC were devised to

ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the

Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of

justice. It was further observed that laws of procedure are meant to regulate effectively, assist and aid the object of doing a substantial and real justice

and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws.

The Apex Court placed reliance upon well settled principles set out succinctly in the case of Collector, Land Acquisition, Ananatnag & Ors. vs. Katiji

& Ors., that the Courts should adopt a liberal approach in considering application for condonation of delay on the ground of sufficient cause under

Section 5 of the Limitation Act. This principle has been again reiterated in the case of M. Balakrishnan [Supra], wherein it is held that, “rules of

limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy

promptly.â€​

This Court has come across the following judgments of the Supreme Court, wherein Hon’ble Supreme Court has mainly emphasis on cause of

substantial justice rather than party not be trapped in procedural law.

12.1. In the matter between Nand Kishore v. State of Punjab, (1995) 6 SCC 614, the Hon’ble Supreme Court has held as under :

“D. Constitution of IndiaÂArt. 136 Delay in filing SLP â€" Condonation of â€" Writ petition challenging order of compulsory retirement without

challenging the enabling provisions dismissed by High Court â€" Encouraged by a subsequent decision of the Supreme Court the retiree filing a suit for

declaring the order of his compulsory retirement invalid on account of being passed under an invalid provision â€" The said suit ultimately leading to

appeal to Supreme Court b y the retiree â€" At this stage, in order to do substantial justice, the Bench concerned of the Supreme Court advising the

appellant to file an SLP against the decision of the High Court in the writ petition, along with an application for condonation of delay â€" Appellant

doing accordingly â€" In the peculiar circumstances of the case about 31 years’ delay from the date of the impugned decision in the writ petition

condoned â€" Laches and delay.

12.2. In the matter between Union of India & Ors. v. Rameshchandra Joshi, 2002(3)GLR 2332, the Hon’ble Supreme Court has held as under :

“We are fully conscious that the delay occurred in this case is 5 years and 39 days. We would not have entertained this application if it was for a

different cause, but having regard to the peculiar facts and circumstances of the case, and keeping in mind the judge of the Hon’ble Supreme

Court in case of Collector, Land Acquisition, Anantnag (supra), we of the considered opinion that this is a fit case where the delay should be

condoned, because by condoning delay the applicants do not stand to benefit and refusing to condone the delay is likely to result a meritorious matter

being thrown out at the threshold, whereby cause of justice is likely to be defeated. By condoning delay the highest that can happen is that the case

would be decided on merits after hearing the parties.

12.3. In the matter between Rajeshkumar Bhikhabhai Patel & Anr, v. State of Gujarat & Ors. , the Hon’ble Supreme Court has held as under :

(A) Urban Land (Ceiling & Regulation) Act, 1976 (XXXIII of 1976) Sec. 33 & 8(3) â€" Limitation Act, 1963 (XXXVI of 1963) â€" Sec. 5 â€

Declaration of surplus land and allotment thereof to different person â€" Appeal before Competent Authority â€" Delay of 14 days condoned â€

Prescribed period of limitation begins from the date of receipt of the communicated order and not from the date of the order â€" In instant case, the

order not communicated to the petitioners who were not parties to the proceedings, though had interest in the land.

It is not in dispute that the marriage of petitioner and the respondent no. 2 was solemnized on 11th February 1996 and they have no child out of

their wedlock. It is also not in dispute that due to certain matrimonial accords, the respondentÂwife instituted Criminal Misc. Application No. 120 of

2015 seeking reliefs; as provided under Sections 18, 19, 20 & 22 of the DV Act, which eventually came to be partly allowed by the learned Chief

Metropolitan Magistrate, Court No. 22, Ahmedabad vide judgment an order dated 29th September 2017, giving rise to filing of an Appeal by the

respondentÂwife, being Criminal Appeal No. 490 of 2018, followed by delay condonation application, being Criminal Misc. Application [Delay] No.

7631 of 2017, which the learned Additional Sessions Judges, Court No. 20, City Sessions Court, Ahmedabad allowed by condoning the delay of 51

days on the ground that if the said application for condonation of delay is not allowed, the purpose of the DV Act, under which a substantive appeal

has been preferred by the wife, will not be served.

Delving into the merits of the proceedings, this revision application essentially seeks quashment of the impugned order dated 29th August 2018 [at

Exh. 1] whereby delay of 51 days in lodgment of an appeal came be condoned by the learned Addl. Sessions Judge, City Sessions Court, Ahmedabad.

The learned Addl. Sessions Judge has given valid reasons before arriving at a conclusion to condone the delay by holding that if the present application

will not be allowed, the purpose of the DV Act under which the appeal has been preferred will not be served. The record suggests that the Court

below has heard both the sides and took into consideration, all the relevant material available before it for condoning delay by aptly concluding that,

“..without being technical and after taking lenient view in the matter, this Court is of the view that the delay of fifty one days caused in filing the

criminal appeal requires to be condoned in the interest of justice.†The said conclusion, duly followed by valid reason, cannot be brushed aside

particularly when there is a strong arguable case to be decided on merits, by giving a pragmatic justice oriented approach to the expression

“sufficient causeâ€​.

Let me now examine as to whether the Court below was justified in condoning delay in the peculiar facts of the present case.

The learned trial Court has considered pleading, the documents produced by the parties, written arguments submitted by the parties. Purpose of the

Act under which the appeal is proffered by the appellant and by awarding technical approach and taking lenient view to secure end of justice the delay

is condoned.

Considering the averments made in the application, arguments advanced by the learned counsel for the respective parties, ratio laid down by the

Hon’ble Supreme Court, subject matter of the impugned order to be challenged before the appellate Court, benevolent provisions of D.V. Act,

facts and circumstances of the case and in the interest of justice, the present Revision Application is required to be dismissed and accordingly

dismissed. No order as to costs.