Saurabh Negi & Another vs Smt. Vibha Negi & Another

Manoj K. Tiwari, J.

This case was dismissed for want of prosecution on 18.09.2018. The cause shown is sufficient for recalling the order dated 18.09.2018. Learned counsels for the respondents have no objection, if restoration application is allowed. Accordingly, restoration application is allowed. Let the case be restored to its original number.

Applicant No. 1 - Saurabh Negi is the husband of respondent No. 1 - Smt. Vibha Negi, who has challenged the order dated 26.04.2018 passed by learned District & Sessions Judge, Pauri Garhwal in Miscellaneous Criminal Appeal No. 6 of 2018, whereby application for condoning the delay in filing the appeal has been rejected.

It transpires that wife/respondent filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against her husband/applicant. The said application was allowed by learned Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal vide judgment and order dated 27.09.2016, whereby inter alia it was directed that applicant/husband shall pay Rs.40,000/- per month to respondent No. 1. Feeling aggrieved by the said order, applicants filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005. Since there was delay of 15 months and 10 days in filing the appeal, therefore, the applicants had also moved an application under Section 5 of the Limitation Act for condoning the delay. The said application having been rejected by learned appellate court, the applicants have filed this C-482 application before this Court.

I have gone through the delay condonation application filed by the applicants and also the order dated 26.04.2018 passed by learned appellate court on the said application. In the delay condonation application, applicant has inter alia pleaded in para 6 that whatever delay has been caused is due to the erroneous legal advice received by him from Advocate. He had also stated in para 5 to his delay condonation application that due to matrimonial dispute, applicant is suffering from 'depression' and applicant No. 2 (his mother), who is ill, is solely looking after her son. Learned appellate court has not considered these aspects, and had rejected the delay condonation application on the ground that sufficient cause has not been shown for the delay in filing the appeal.

Hon'ble Supreme Court in the case of K.Subbarayudu & others Vs The Special Deputy Collector (LAO) reported in (2017) 12 SCC 840 has held that liberal and justice oriented approach should be adopted while considering delay condonation application. Para 11 of the said judgment is extracted below:-

"The term "sufficient cause" is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fides is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay. In State of Nagaland v. Lipok AO and Others (2005) 3 SCC 752, it was held as under:-

"..... Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient.""

In such view of the matter, impugned order dated 26.04.2018 cannot be sustained in the eyes of law, therefore, the same is hereby set aside, subject to the cost of Rs.5,000/- upon the applicants.

Sri G.S. Negi, learned counsel for respondent No.1 submits that applicant/husband has not paid the amount, as directed by learned Additional Chief Judicial Magistrate, Kotdwara, to his wife. Per contra, Mr. D.C.S. Rawat, learned counsel for the applicants submits that applicant No. 1 has paid a sum of Rs.3.00 lakh to respondent No. 1 and his client is ready and willing to pay 50% of the amount, as awarded by the learned Additional Chief Judicial Magistrate, to his wife/respondent.

Consequently, applicant/husband is further directed to pay 50% of the amount, as awarded by learned Additional Chief Judicial Magistrate, to respondent No. 1, after adjusting the amount already paid.

Learned District & Sessions Judge, Pauri Garhwal is directed to reconsider the delay condonation application of the applicants within a period of four weeks from the date of production of certified copy of this order.

With the aforesaid directions, criminal miscellaneous application stands disposed of.