IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Restoration Application No. 164 of 2018
IN
Criminal Misc. Application No. 1100 of 2018
(Under Section 482 Cr.P.C.)
Saurabh Negi & another … Applicants
Vs
Smt. Vibha Negi & another … Respondents
Mr. D.C.S. Rawat, Advocate, present for the applicants.
Mr. G.S. Negi, Advocate for respondent No. 1.
Mr. Pramod Tiwari, learned Brief Holder for the State of Uttarakhand.
Hon’ble Manoj K. Tiwari, J. (Oral)
1. 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.
2. 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.
3. 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 `40,000/- per month to
respondent No. 1. Feeling aggrieved by the said order,
applicants filed an appeal under Section 29 of the
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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.
4. 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.
5. 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
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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.””
6. 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 `5,000/- upon the applicants.
7. 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 `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.
8. 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.
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9. 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.
10. With the aforesaid directions, criminal
miscellaneous application stands disposed of.
(Manoj K. Tiwari, J.)
26.11.2018
Aswal
