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Judgment
Ajay Mohan Goel, Judge (Oral)
The petitioner has approached this Court inter alia praying for the following relief:-
“It is, therefore, most respectfully prayed that in view of the facts and circumstances enumerated above, this petition may kindly be allowed and the impugned order passed by the ld. Principal Judge, Family Court, Shimla, H.P. in case No.905341/2012, CNR No.HPSH100001182012 dated 20.11.2019 titled as Munish Kumar Sharma versus Om Prakash Sharma and another may kindly be quashed and set-aside and the maintenance petition be restored to its original number for decision on merits in the interest of justice.”
Along with the petition, an application has been filed under Section 5 of the Limitation Act, praying for condonation of delay in filing the revision petition.
In terms of the report of the Registry, the petition is barred by 6 years, 8 months, and 13 days.
The impugned order dated 20.11.2019, reads as under:-
“20.11.2019
Present:- None for the petitioner and respondent No.1. Sh. G.C. Kainthla, Advocate, for the respondent No.2.
Called again after respite at 2:50 P.M but neither the petitioner nor his counsel appeared. Evidence of the petitioner is also not present. No steps for evidence has been taken by the petitioner. Cause list of the day has already been exhausted. Apparently, the petitioner is not interested to pursue the present petition, as such, the petition is dismissed in default for want of prosecution. File after due completion be consigned to the record room. sd/-Announced. (Rajeev bali) 20.11.2019 Sessions Judge (Family Court) Shimla, H.P.”
When this case was listed on 07.08.2026, the following order was passed by this Court:-
“This application has been filed for condonation of delay of 6 years, 8 months and 13 days in filing the revision petition against the order dated 20.11.2019, passed by the learned Sessions Judge (Family Court) Shimla, District Shimla, H.P., whereby the petition preferred by the petitioner under Section 125 of the Code of Criminal Procedure was dismissed in default for want of prosecution.
2.Admittedly, the petitioner is about 46 years of age. He is claiming maintenance from his parents on the ground that he is incapable of earning, as provided under Section 125 (1) (c) of the Code of Criminal Procedure [now under Section 144 (1) (c) of Bhartiya Nagrik Suraksha Sanhita, 2023]. However, before issuing notice in the present application, we are of the opinion that it would be appropriate to satisfy ourselves regarding his disability rendering him incapable to earn his livelihood, who is claiming maintenance from his parents.
3.Accordingly, applicant is directed to place on record an appropriate certificate issued by an appropriate authority or any other document to establish prima facie claim of his incapacity to earn so as to entitle him claim maintenance from his parents.
4.Needful be done well before next date.
5.List for consideration on 15.09.2026, as prayed.”
In compliance thereto, needful has not been done by the petitioner.
We have heard learned Legal Aid Counsel and we have also carefully gone through the application praying for condonation of delay, as also other material which has been placed on record by the petitioner. The contention of the learned Legal Aid Counsel that the revision could not be filed within the period of limitation, or within some reasonable time thereafter on account of the COVID-19 pandemic etc. does not convince us. The case of the petitioner was dismissed in default for want of prosecution on 20.11.2019. This Court can take judicial notice of the fact that the Courts were functioning till about 20th March 2020, and it is only thereafter that the Courts etc. had to close because of the COVID-19 pandemic. It is also evident from the submissions made by the learned Legal Aid Counsel that when the petitioner had applied for legal aid somewhere in the year 2022, legal aid was duly provided to the petitioner, but then, he did not approach the Court purportedly for want of certified copies etc. of the order. A perusal of the certified copy of the impugned order demonstrates that the petitioner applied for the said copy on 24.05.2025 and the copy was attested on 04.06.2025. Thereafter, the date of delivery is 24.09.2025. Be that as it may, the fact of the matter remains that the petitioner took no pains to either apply for or otherwise obtain the copy of the impugned order as up to 24.05.2025. Learned Legal Aid Counsel submits that even this copy, which is appended with the petition was obtained through the office of the legal aid.
The petition was dismissed by the learned Court below for non-prosecution on 20.11.2019 and the petitioner has approached this Court after a lapse of six years seeking a recall of that order. The reasons given in the application are not convincing so that such a huge delay should be condoned, more so, in light of the fact that an important right now stands crystallized in favour of the non-applicants after the expiry of limitation as from the date the petition filed by the petitioner was dismissed by the learned Court below on 20.11.2019, who otherwise also happen to be the aged parents of the petitioner. Accordingly, this application is hereby dismissed and so also, the petition. We appreciate the assistance rendered by the learned Legal Aid Counsel.