Case Note & Summary
The petitioner, Hetram Kashinath Shende, filed a Criminal Writ Petition under Article 227 of the Constitution of India challenging the order of the Family Court, Nagpur, dated 3rd October 2012, which rejected his application for condonation of delay in filing MJC No. 9/2010. The background of the case is that the Family Court had passed an ex parte order on 29th October 2004 directing the petitioner to pay monthly maintenance of Rs. 1700 to his wife (respondent no.1) and minor son (respondent no.2). The petitioner filed MJC No. 5/2005 to set aside that ex parte order, but that application was dismissed for default on 20th April 2006. Subsequently, the petitioner filed MJC No. 9/2010 seeking to set aside the dismissal of MJC No. 5/2005, which was beyond the period of limitation. Along with that application, he filed an application for condonation of delay. The Family Court rejected the delay condonation application, leading to the present writ petition. The petitioner's counsel argued that the delay was caused because the petitioner was not informed by his advocate about the dismissal of MJC No. 5/2005, and he came to know about it only later. The respondents' counsel opposed the petition, stating that the delay was inordinate and unexplained. The High Court, after hearing both sides, found that the petitioner's explanation was not sufficient to condone the delay of over four years. The court noted that the petitioner had not taken any steps to inquire about the status of his case and merely blamed his advocate. The court held that the Family Court's order rejecting the condonation of delay was justified and did not warrant interference. Consequently, the writ petition was dismissed, and the rule was discharged.
Headnote
A) Family Law - Maintenance - Condonation of Delay - Section 5 of Limitation Act, 1963 - The petitioner sought condonation of delay of over four years in filing an application to restore a dismissed MJC for setting aside an ex parte maintenance order - The Family Court rejected the delay condonation application on the ground that the petitioner failed to explain the delay satisfactorily - Held that the petitioner's explanation of ignorance due to his advocate's failure to inform was not sufficient cause, and the petition was dismissed (Paras 1-5).
Issue of Consideration
Whether the Family Court was justified in rejecting the application for condonation of delay in filing MJC No. 9/2010 for setting aside the dismissal of MJC No. 5/2005.
Final Decision
The High Court dismissed the Criminal Writ Petition, upholding the Family Court's order rejecting the condonation of delay. The rule was discharged.
Law Points
- Condonation of delay
- Sufficient cause
- Limitation Act
- Section 5
- Maintenance order
- Ex parte decree
- Family Court
- Restoration application
Case Details
2012 LawText (BOM) (10) 171
Criminal Writ Petition No. 142/2012
Mrs. Sonali M. Saware (for petitioner), Mr. K.K. Solomon (for respondents), Mrs. S.W. Deshpande (appointed earlier, discharged)
Sangeeta w/o Hetram Shende and Prakash s/o Hetram Shende (minor through guardian mother)
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Nature of Litigation
Criminal Writ Petition under Article 227 of the Constitution of India challenging the order of the Family Court rejecting the application for condonation of delay.
Remedy Sought
The petitioner sought to set aside the order of the Family Court rejecting the condonation of delay application and to allow MJC No. 9/2010 for restoration of MJC No. 5/2005.
Filing Reason
The petitioner's application for condonation of delay in filing MJC No. 9/2010 was rejected by the Family Court.
Previous Decisions
The Family Court passed an ex parte maintenance order on 29th October 2004. The petitioner's MJC No. 5/2005 to set aside that order was dismissed for default on 20th April 2006. The petitioner then filed MJC No. 9/2010 for restoration, which was beyond limitation, and the delay condonation application was rejected.
Issues
Whether the Family Court was justified in rejecting the application for condonation of delay in filing MJC No. 9/2010 for setting aside the dismissal of MJC No. 5/2005.
Submissions/Arguments
Petitioner's counsel argued that the delay was caused because the petitioner was not informed by his advocate about the dismissal of MJC No. 5/2005, and he came to know about it later.
Respondents' counsel opposed the petition, stating that the delay was inordinate and unexplained.
Ratio Decidendi
The petitioner failed to provide sufficient cause for the delay of over four years in filing the restoration application. Ignorance due to advocate's failure to inform is not a valid ground for condonation of delay when the petitioner did not take any steps to inquire about the status of his case.
Judgment Excerpts
The petitioner has been directed by the Family Court to pay an amount of Rs. 1700/ to the respondents 1 and 2 by way of monthly maintenance.
The abovementioned order granting maintenance was passed exparte on 29th October, 2004.
The petitioner, therefore, filed a fresh Application being MJC No. 9/2010 for setting aside the order of dismissal of earlier MJC No. 5/2005.
The prayer of the applicant for condonation of delay has been rejected by the Family Court by the impugned order.
Procedural History
The Family Court passed an ex parte maintenance order on 29th October 2004. The petitioner filed MJC No. 5/2005 to set aside that order, which was dismissed for default on 20th April 2006. The petitioner then filed MJC No. 9/2010 for restoration, along with an application for condonation of delay. The Family Court rejected the delay condonation application. The petitioner challenged that order by filing Criminal Writ Petition No. 142/2012 in the High Court of Bombay at Nagpur, which was dismissed on 3rd October 2012.
Acts & Sections
- Limitation Act, 1963: Section 5
