Mahendran,S/O.Malaisamy, v. Muthirulayee @ Jothi

ORDER The petitioner is aggrieved by the impugned order dated 28.01.2019, passed by the learned Judge, Family Court, Sivagangai, in I.A.No.413 of 2018, declining to condone the delay of 1650 days in filing the petition to restore the case in H.M.O.P.No.141 of 2012, on the file of the Sub Court, Sivagangai. The said H.M.O.P. was dismissed for non-prosecution on 06.12.2013. The relevant portion of the impugned order reads as under:- ''4. Arguments heard both sides. Available records perused. This petition in HMOP 141/2012 was filed before Sub Court Sivagangai. This petitioner filed that case seeking the relief of divorce against the respondent/wife on the ground of cruelty. While that case was pending at Sub Court Sivagangai, the respondent appeared therein and filed the counter on 5.7.2013. Subsequently, the above case was posted for enquiry. But the enquiry was not commenced by the petitioner side on 18.7.2013,

22.8.2013, 21.11.2013, 6.12.2013. Hence on 6.12.2013 the above main case was dismissed at Sub Court Sivagangai for the default of the petitioner.

¶5Now the petitioner is taking a stand that he was working in Army at other State and hence he was not able to file the restoration petition in time. In fact, the reason adduced by the petitioner is not at all justifiable one, on perusing the case records, this petitioner never turned up to court for enquiry in the year 2013 and the case was dismissed for default on

6.12.2013. At last, this petitioner filed this application to restore the main case in the year 2018. So, it is well obvious that nearly about 5 years, this petitioner has not at all come forward to file restoration petition.

¶6Even on considering the nature of service doing by the petitioner, this petitioner cannot deny that he has not come to his native in the past 5 years period. Further it is alleged by the respondent side that there was a criminal case lodged against the petitioner and he obtained an anticipatory bail order with showing the reference of divorce case. If it be so, the perfect say that he was not aware of the dismissal of the main case during the year 2013. Bail order was said to have obtained by the petitioner in the year 2015. But, this restoration petition has been filed only in the year 2018.

¶7There is an enormous and inordinate delay in the filing of restoration petition and the petitioner was not able to prove that the above delay is against his knowledge. In such circumstance, the court cannot close its eyes to do undue favour to the petitioner against the principles of law and natural justice. Court cannot be carried out with injustice on the basis of an unacceptable lethargic reasons. If this type of inordinate delay is condoned for such flimsy reasons, then the real object of having the Limitation Act will be defeated. The object of the Limitation Act is to curtail the multiplication of cases which is not at all progressed by the party within prescribed time. If any one of the parties can easily restore this case even after many number of years, before the court of law, by filling the type of this applications, the real object of the enactment of Limitation Act will be thrown into ditch

¶8In this case, the petitioner has lethargically taken 1650 days delay to file restoration petition to get the relief of divorce against his wife, that too after a case on bigamy has been registered against the petitioner. So, it is obvious that this petitioner has willfully delayed in filing the restoration petition for years together and subsequently with false averment this petitioner has come forward with this application before this court.

¶9Considering all the above facts and circumstance, this court is of the view that this petitioner has not satisfactorily explained the delay of 1650 days in filing restoration petition and it is obvious to note that this petitioner has willfully taken his own time for filing this application. Hence it is decided that it is not justifiable to condone the delay of 1650 days in filling the restoration petition and this petition is deserved to be dismissed as devoid on merits. In the result, it is hereby ordered that this petition is dismissed. That there shall be no order for the cost.''

¶2The specific case of the petitioner is that, both the petitioner and the respondent got married on 22.08.2004. However, on account of cruelty meted out, the petitioner was left with no other option to file H.M.O.P.No.141 of 2012, for divorce, before the Sub Court, Sivagangai. It is the further case of the petitioner that he being an employee of the Indian Army, was transferred to all over the Country and therefore, he could not appear when the case was listed for hearing.

¶3The learned counsel for the petitioner submitted that the respondent had also filed H.M.O.P.No.67 of 2015 for restitution of conjugal rights. However, it was dismissed for non-prosecution on 04.08.2016. It is submitted that though the petitioner has not explained the reasons for the delay in filing the application to restore H.M.O.P.No.141 of 2012 clearly, the fact remains that this is a case where the marriage between the petitioner and the respondent has irretrievably broken down. It is further submitted that the petitioner is also maintaining the children born to him and the respondent and is agreeable for any mutual settlement.

¶4The learned counsel for the petitioner further submitted that the respondent is also a Government Servant and is employed gainfully and in order to harass the petitioner, she is objecting the present Civil Revision Petition.

¶5I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent and also perused the affidavit filed by the petitioner.

¶6The averments made in the affidavit filed by the petitioner in I.A.No.413 of 2018 for restoring H.M.O.P.No.141 of 2012, reads as under:- ''3. ,e;j epH tof;Fk; vjpHkDjhuhplkpUe;J tpthfuj;J Nfhhp vd;dhy; rptfq;if rhHG ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;lJ. i\ tof;fpYk; vjpHkDjhuH M[uhfp vjpHciu jhf;fy; nra;j gpd;dH vdJ jug;G tprhuizf;fhf fle;j 06.12.2013k; Njjp ,Wjp tha;jhTk; Vw;gl;bUe;jJ. ehDk; gzp epkpj;jk; ntspkhepyq;fspy; gzpGhpe;J te;jjhy; vdJ tof;fwpQiu mbf;fb njhlHG nfhs;sNth> tof;fpd; epiy Fwpj;J tprhhpj;J njhpe;J nfhs;sNth ,ayhky; Ngha;tpl;lJ. ,j;Jld; i\ Njjpapy; vdJ nrhe;j CUf;F tuTk; r%fk; ePjpkd;wj;jpy; M[uhfTk; ,ayhky; Ngha;tpl;lJ. gpd;dPL tpLKiwapy; rptfq;if te;J vdJ tof;fwpQiu re;jpj;j NghJ jhd; i\ Njjpapy; r%fk; ePjpkd;wj;jpy; vd;id mioj;Jk; ehd; M[uhfhjjhy; vdJ tof;Fk; Dismissed for default - f;fhf fle;j

06.12.2013

Njjpapy;

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vdf;F njhpate;jJ. ,jdhy; i\ tof;ifAk; Restore nra;tjw;F 30 ehl;fSf;Fs; kDj; jhf;fy; nra;a ,ayhky; Ngha;tpl;lJ. i\ kD jhf;fy; nra;tjw;Fk; 1650 ehl;fs; fhyjhkjkhfptpl;lJ. ,t;thW kD jhf;fy; nra;tjw;F Vw;gl;l fhyjhkjKk; Ntz;Lnkd;Nw Vw;gl;ljy;y. nja;thjPdkhf Vw;gl;lNjahFk;. vdNt ,e;j ePH tof;ifAk; Restore nra;tjw;F kDj; jhf;fy; nra;tjpy; Vw;gl;l 1650 ehl;fs; fhyjhkjj;ij kd;dpj;J ,d;W jhf;fy; nra;tij Vw;Wf;nfhs;s

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mtrpakhf cs;sJ. ,y;yhtpby; vdf;Fk; jhq;f ,ayhj f\;l> e\;lk; rk;gtpj;JtpLk;.''

¶7The only reason given by the petitioner for the delay in filing the application to restore H.M.O.P.No.141 of 2012 is that, he was unable to contact his counsel due to his transfer and that it was on account of Act of God.

¶8The trial Court has rightly rejected the application for condoning the delay. Therefore, there is no case made out for interfering with the impugned order dated

28.01.2019, passed by the learned Judge, Family Court, Sivagangai, in I.A.No.413 of 2018 in H.M.O.P.No.141 of 2012. Hence, this Civil Revision Petition stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes/No Index : Yes/No

27.03.2023 Internet : Yes/No smn2 To The Judge, Family Court, Sivagangai.

C.SARAVANAN, J. smn2

27.03.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.03.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)No.5453 of 2019 Mahendran, S/o.Malaisamy .. Petitioner Versus Muthirulayee @ Jothi, D/o.Ramasamy .. Respondent Prayer :- Petition filed under Section 115 of the Civil Procedure Code, to call for the records pertaining to the fair and decreetal order dated 28.01.2019, made in I.A.No. 413 of 2018 in H.M.O.P.No.141 of 2012, on the file of the Family Court, Sivagangai. For Petitioner : Mr.K.Chengiz Khan For Respondent : Mr.S.Srinivasa Raghavan