Naveen Goswami vs Smt. Kamla Goswami

Having heard learned Counsel for the parties, a preliminary objection has been raised on behalf of the respondent defendant that since the rejection of a delay condonation application, as has been done by the impugned order dated 13.11.2015, is not a decree, so this second appeal cannot be preferred under Section 100 of the Code of Civil Procedure. Learned Counsel for the defendant respondent has also taken this Court to Section 101 CPC, which envisages that no second appeal shall lie except on the grounds mentioned in Section 100 .

Learned Counsel for the appellant plaintiff refuted the above argument by relying on a judgment rendered by the Hon''ble Apex Court in Shyam Sundar Sharma v. Pannalal Jaiswal & Others, (2005) 1 SCC 436, wherein it has been categorically held that the rejection of the delay condonation application tantamount to passing/affirming of a decree. So, it can be challenged under Section 100 CPC, as has been done in the instant case. For the sake of convenience, paragraph 10 of the said verdict is reproduced as under:

"The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs. Mathew (1987 (2) KLT 848). Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal."

I am convinced with the submissions of the learned Counsel for the appellant plaintiff and considering the above ratio propounded by the Hon''ble Apex Court, this second appeal is accepted on the question of its admissibility and it is admitted for hearing on the following substantial question of law formulated at point no. A in the memo of appeal and the same is reproduced below:

"Whether a party should be non suited on hyper technical ground of limitation when explanation for delay does not smack of malafides and cause of substantial justice deserves to be preferred over technical consideration considering that a litigant does not stand to benefit by resorting to delay?"

Having heard on the merits, it transpires that the marriage of the couple was solemnized on 27.11.2002. Divorce petition was filed by the appellant under Section 13 of the Hindu Marriage Act on 3.11.2006, which could be adjudicated resulting in its dismissal on merits by the Civil Judge (Sr. Div.) on 6.4.2012. First appeal against this judgment could be filed in August 2015 with the delay of 3 years and 42 days. The first appeal was rejected on the ground of inordinate delay.

It has been argued by the learned Counsel for the appellant plaintiff that initially the maintenance @ Rs. 1500/- per mensem was awarded to the respondent Smt. Kamla Goswami. Subsequently, it was enhanced to the tune of Rs. 9000/- in 2014-15. Such enhancement of the maintenance was challenged by way of approaching the High Court. So, the appellant plaintiff remained indulged in pursuing those matters pertaining to the maintenance and being in the private job, he could not make out on account of sundry restraints including financial one in preferring the first appeal against the judgment and order dated 6.4.2012 because the whole concern of the appellant plaintiff was to resist and desist the course of law in granting the enhanced maintenance to the tune of Rs. 9000/- per month. It has been further submitted by the learned Counsel for the appellant plaintiff that recently, such amount has again been enhanced to the tune of Rs. 13,000/- per mensem. So, the whole object of Smt. Kamla Goswami is to keep on receiving this amount of enhanced maintenance for the entire life and closing the chapter of judicial contemplation on the question of divorce. Adopting such recourse by Smt. Kamla Goswami will be drastically fatal to the appellant.

Learned Counsel of the appellant plaintiff has heavily relied upon the judgment of the Hon''ble Apex Court rendered in Collector, Land Acquisition, Anantnag & Another v. Mst . Katiji & Others, 1987 0 AIR (SC) 1353, wherein the principles of test on consideration of delay condonation application have been propounded. Such propositions of the Hon''ble Apex Court are as under:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala

fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

I think the grounds, as have been enunciated by the appellant plaintiff, pass the test on the anvil of the propositions laid down by the Hon''ble Apex Court (supra). Therefore, I allow this second appeal, set aside the impugned order dated 13.11.2015, condone the delay and remand the matter to the first appellate court with direction that the first appeal of the plaintiff appellant shall be restored to its original number and the same shall be heard and adjudicated on merit. I answer the substantial question of law accordingly in favour of the appellant.

Let the LCR be sent back.