dv exparte setaside by delhi district court

 

Delhi District Court
Natwar Lal Verma vs . Anu Verma on 21 January, 2019
                               Natwar Lal Verma Vs. Anu Verma
                                         CA No: 51/2017


      IN THE COURT OF SH. HARISH DUDANI:
 SPECIAL JUDGE, (PC ACT) CBI-I ,DWARKA COURTS;
                  NEW DELHI

       Natwar Lal Verma
       S/o Sh. Kishori Lal
       R/o 2768/2, Sec. 49-D
       Chandigarh- 160047.

                                    .............. Appellant

       VERSUS

       Anu Verma
       W/o Sh. Natwar Lal Verma
       R/o RZ-D/9C, Gali No. 11,
       Durga Park, New Delhi- 110045

                                      .........Respondent

CA No.                                    51/2017
Date of Institution                     17.02.2017
Reserved for orders on                  09.01.2019
Order announced on                      21.01.2019


JUDGMENT

1. This is an appeal under Section 29 of Protection of Women from Domestic Violence Act , 2005 (hereinafter called DV Act) against the Ex-Parte Judgment dated 25.07.2016 passed by Ld. MM, Mahila Court-02, Dwarka, New Delhi. The appellant CR No:51/2017 Page 1 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 has filed applications dated 16.02.2017 and 24.08.2018 under Section 5 of the Limitation Act for condonation of delay in filing the appeal.

2. Briefly stated relevant facts for disposal of the applications dated 16.02.2017 and 24.08.2018 under Section 5 of Limitation Act for condonation of delay and appeal are as under :-

3. The present appeal arises out of complaint case bearing no. 4994585/2016 (Old CC no. 21/1/16), titled as Smt. Anu Verma & Anr. vs. Natwar Lal Verma & Anr. under Sections 12,18,19,20 and 22 of the Protection of Women from Domestic Violence Act, 2005 ( herein after referred to as DV Act) filed by the complainant (respondent herein) against Sh. Natwar Lal Verma @ Vijay (Husband) (appellant herein) and Smt. Narmada (Mother In law) stating therein that complainant was married to respondent no. 1 (appellant herein) on 26.11.2005 according to Hindu Rites and Customs and in the said marriage, the parents and relative of the complainant (respondent herein) gifted many items including jewellery and household goods and other dowry articles according to their means and capacity. It is stated that immediately after marriage, respondent (appellant herein) and his family members started taunting and CR No:51/2017 Page 2 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 harassing the complainant (respondent herein) for bringing insufficient dowry. It is stated in the complaint that the respondent(appellant herein) and his family members had made the life of complainant(respondent herein) unbearable and the respondents and sister in law of complainant namely Lata raised objection for bringing an Alto Maruti Car as they wanted to have cash in lieu of it. It is stated that initially the complainant had filed a complaint dated 22.09.2008 before CAW Cell, Nanak Pura, Delhi against her husband and his relatives for demand of dowry, causing harassment and maltreatment and in pursuance of the said complaint, her husband and relatives were summoned and they joined the investigation and after attending the few dates, on 15.10.2008 her husband and his relatives felt regret and on their assurance for not demanding the dowry or causing maltreatment upon the complainant, the complainant accompanied her husband to the matrimonial home at Chandigarh. It is stated that after few days again complainant met the same fate and thus she was forced to leave the matrimonial home on 19.09.2009 with her brother.

4. It is further stated in the complaint that the complainant and her parents made all efforts to CR No:51/2017 Page 3 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 reconcile the matter with respondents but they refused to keep her and child with them and therefore the complainant was forced to lodge a complaint again before CAW Cell on 09.11.2009 for reopening her earlier complaint dated 22.09.2008 and she also filed maintenance petition.

5. It is further stated in the complaint that after assurance of respondent and his parents that complainant will be treated with love and affection and they will not give any chance of complaint, the complainant for the sake of her son and family agreed to accompany the respondents and after withdrawal of maintenance petition under Section 125 Cr.P.C., the complainant joined the respondents at matrimonial home, Solan, Himachal Pradesh and then after sometime shifted to Chandigarh.

6. It is further stated in the complaint that after withdrawal of maintenance petition on 07.12.2011 and quashing of FIR No. 205/2010, u/s 498A/406/34 IPC, PS Dabri on 12.10.2012, the conduct and behaviour of respondents (appellant herein) has become worst and the complainant was not given the rights of legally wedded wife in her matrimonial home and respondent (appellant herein) started to ignore the complainant and her son and ceased to CR No:51/2017 Page 4 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 fulfill the marital conjugal obligations and their daily requirements and even school fee of child. It is stated in the complaint that the complainant was very much conscious about the career of her son and tolerated maltreatment and atrocities caused by respondents. It is stated that complainant managed to earn by taking home tuitions etc. so that schooling of her son may not be discontinued. It is stated that on 01.04.2014, respondent (appellant herein) physically assaulted complainant and she was admitted in the hospital and police was also informed at Chandigarh. It is stated in the complaint that Respondent (appellant herein) again assaulted the complainant for which report was again lodged on 17.10.2014 . It is stated that respondent used to give her abuses and physical assault. It is stated that on 25.08.2015 respondent picked up a scissor in his hands in order to cause injury to complainant and threatened to kill the complainant saying that police cannot dare to harm him in any way and as such under these circumstances, complainant (respondent herein) along with her minor son was forced to come to her parents house leaving all her stridhan and other articles of dowry in the matrimonial home.

7. It is stated in the complaint that respondent CR No:51/2017 Page 5 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 (appellant herein) is a man of means and he is a qualified MBA and earlier in 2008 was working with ICICI Bank and drawing a salary of Rs. 24,000/- and later in the year 2011-12 the appellant opened a showroom of electronics at Solan, H.P. and thereafter shifted to Chandigarh where presently he is running a flourishing business of selling water purifier machine in the main market and earning around Rs. 50,000/- per month. It is stated that respondent is an income tax payee and has no other liability except to maintain the complainant and his son as his father has already expired who was govt. pensioner and his mother is getting pension after the death of his father. It is stated that complainant is not earning anything and absolutely dependent on the mercy of her father and brother.

8. Vide order dated 22.02.2016, respondent (appellant herein) was summoned by the Ld. Trial Court. As per order dated 05.05.2016 summon issued to respondent no. 1 & 2 were received back with the report of refusal and Ld. Trial Court was pleased to direct for issuance of fresh summons to respondent no. 1 & 2. As per order dated 06.06.2016 , respondent(appellant herein) failed to appear despite service of summons and was CR No:51/2017 Page 6 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 proceeded Ex-parte and the case was adjourned for ex-parte complainant evidence and final arguments on 12.07.2016.

9. Complainant(respondent herein) examined herself as CW1 and tendered her affidavit Ex.CW1/A in evidence and thereafter CE was closed vide order dated 12.07.2016 and after hearing final arguments, the application under Section 12 of DV Act was disposed off vide judgment dated 25.07.2016.

10. Vide Ex-Parte judgment dated 25.07.2016, Ld. MM has been pleased to direct the respondent (appellant herein) to pay a sum of Rs. 15,000/- per month to the complainant(respondent herein) and her son towards maintenance from the date of filing of the petition. It was clarified that complainant shall be entitled to draw maintenance under the said order during her lifetime till her re- marriage and till her son attains majority and the maintenance so payable shall include expenses towards food, lodging, medical expenses etc.. Respondent (appellant herein) was further directed to clear the arrears of maintenance within six months from the date of said order in equal installments and it was further directed that the complainant (respondent herein) shall be entitled to 10% yearly CR No:51/2017 Page 7 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 increase in the awarded maintenance. Respondent (appellant herein) was further directed to furnish the monthly maintenance after the date of said order by way of money order or by deposit in the bank account of the complainant by or before 15th day of each English calender month. Respondent (appellant herein) and his mother were further directed to jointly pay Rs. 10,000/- as compensation to the complainant for the injury inflicted.

11. Aggrieved by the judgment dated 25.07.2016 whereby Ld. MM has been pleased to direct the respondent ( appellant herein) to pay a sum of Rs. 15,000/- per month to the complainant(respondent herein) and her son towards maintenance from the date of filing of the petition and to pay Rs. 10,000/- as compensation to the complainant for the injury inflicted., the appellant has filed the present appeal.

12. In the appeal the appellant has stated that since the inception of marriage of the parties, the respondent had on one pretext or the other making frivolous complaints against the appellant and his family. It is stated that the respondent was in the habit of frequently visiting her parental home at Delhi and to save his matrimonial life, the appellant CR No:51/2017 Page 8 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 separated from his parents and shifted to Jalandhar as per wish of the respondent on 22.07.2018 where again respondent continued visiting Delhi and father of the respondent also used to visit the matrimonial home at Jalandhar. It is stated in the appeal that respondent under the impression of false ego that her father has huge finance with him used to compare the same with her matrimonial home and since the appellant was a wage earner as Unit Manager in MAX, New York Life and earned about Rs. 22,000/- and as such she always looked down upon the appellant and parents of the respondent also supported her and the respondent never allowed the appellant to touch the keys of the car which was given in the marriage by the parents of respondent in her name and used to say ” Teri Aukat Nahi Hai”.

13. It is further stated in the appeal that the respondent left her matrimonial home on 14.09.2008 and lodged a complaint at CAW, Nankapura on 22.09.2008 and also filed a petition under Section 125 Cr.P.C. at Dwarka Courts and the appellant joined the investigation at CAW Cell and matter was settled on 10.07.2009 and respondent joined her matrimonial home at Jalandhar.

14. It is further stated in the appeal that CR No:51/2017 Page 9 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 respondent did not change her conduct and on the instigation of her parents , took her all belongings in her car and left her matrimonial home on 19.09.2009 along with her brother and revived her complaint on 09.11.2009 at CAW Cell and filed petition under Section 125 Cr.P.C. and complaint under DV Act in Dwarka Courts and at that time entire dowry articles were returned when an FIR underSection 498A/406/34 IPC was lodged against the appellant, his parents and his sisters. But again respondent compromised the matter with the appellant on 22.11.2011 and she joined her matrimonial home at Solan, HP and withdrew her complaint under DV Act and petition under Section 125 Cr.P.C. and cooperated the appellant in quashing of the FIR after about 11 months i.e. 12.10.2012.

15. It is stated in the appeal that at Solan the son of the parties was admitted in school and all the expenses were borne by the appellant but the appellant on the insistence of the respondent shifted to Chandigarh to his parental house in February 2013 where their son was got admitted in Ryan International School, Chandigarh and the appellant started his earning through service and repair of RO/Water purifier which is well within the CR No:51/2017 Page 10 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 knowledge of the respondent.

16. It is further stated in the appeal that thereafter respondent started humiliating, torturing and harassing the appellant by calling the police time and again on 100 number for about 7-8 time and even on two occasions, the appellant was arrested under Section 107/151 Cr.P.C. and was released on bail on the next day.

17. It is further stated in the appeal that the respondent has filed a suit for declaration and permanent & mandatory injunction against the appellant and Estate Officer Chandigarh Housing Board declaring her as Co-owner of the property. It is stated that the parents of the appellant also lodged a complaint with SSP Office, Chandigarh on 20.09.2014 and father of the appellant breathed his last in April 2015 due to to the torturous acts of the respondent.

18. It is stated in the appeal that the mother of appellant is a diabetic patient for last 15 years and she suffered the severe attack of blood sugar to the level of 700 msg and was admitted in the hospital on 03.08.2015 and remained in the hospital for more than 13 days and during this period the respondent came to Delhi to her matrimonial home CR No:51/2017 Page 11 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 having no sympathy with the appellant and on 08.10.2015 the mother of the appellant was again admitted in the hospital.

19. It is further stated in the appeal that on the night of 26.08.2015, respondent again called the police at 100 number and both appellant and respondent were sent to JC for two days and thereafter respondent left Chandigarh at her own will with her parents on 28.05.2015.

20. It is stated in the appeal that again the respondent filed the cases under DV Act and u/s 125 Cr.P.C against the appellant and his mother in Dwarka Court. It is stated in the appeal that he contacted his counsel to appear in his case on 20.01.2017 as he is arranging somebody to look after his mother at Chandigarh in his absence and on inspection by Ld. Counsel for the appellant, it was found that impugned order had been passed by Ld. MM Dwarka Court on 25.07.2016 after considering the service to appellant through his mother who is already a serious, critical patient of diabetes with high blood sugar due to which she loses her memory and as such the appellant could not come to know about the present complaint case filed by the respondent under DV Act. It is further stated in the CR No:51/2017 Page 12 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 appeal that no summon was found pasted on the residence of appellant.

21. It is further stated in the appeal that Ld. Trial Court has as per the averments mentioned in the complaint decided the interim maintenance in favour of respondents which is against the Principles of Natural Justice. It is stated in the appeal that respondent had deliberately with malafide intention misled the Trial Court by mentioning the salary of appellant as Rs. 24,000/- per month for the year 2008 when he was working in ICICI Bank and she was well known that appellant left the service in 2009 and started a new business in Solan which again the appellant had to leave in June, 2013 due to respondent’s insistence and respondent knew that presently appellant is earning about Rs. 10,000/- per month from the business of service and repair of RO/Water Purifier and as such respondent is liable to be prosecuted for giving wrong information regarding income of appellant.

22. It is stated in the appeal that the appellant came to know about the case filed by the complainant under DV Act on 18.01.2017 when police official visited the residence of the appellant with warrant for attachment which were issued in CR No:51/2017 Page 13 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 execution petition filed by the respondent.

23. It is stated in the appeal the respondent has misled the Trial Court on false averments. Appellant has prayed for setting aside the impugned order dated 25.07.2016 passed by Ld. Trial Court.

24. Reply to the appeal has been filed stating therein that appellant has filed the appeal with malafide intention in order to harass the respondent and child and in order to evade from the legal liability from paying the maintenance. It is stated in the reply that the respondent has filed the complaint under Section 12 of DV Act on 21.01.2016 and the appellant was proceeded Ex-parte on 06.06.2016 as he failed to join the proceedings despite service on 27.04.2016 and 05.05.2016 and the mother of the appellant refused to receive the summons and stated that appellant has gone to Ludhiana ( Punjab) and expressed ignorance about period of coming back of appellant from Ludhiana and affixation was done at his residence.

25. It is further stated in the reply that appellant has been in contact with his counsel and came to know the case status very well after and prior to the passing of impugned order dated 25.07.2016 and appellant failed to take appropriate steps deliberately CR No:51/2017 Page 14 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 and negligently. It is further stated in the reply that the appellant should have approached the court when he was first time apprised on 27.04.2016 about the court proceedings or when he was proceeded ex- parte on 06.06.2016 instead of waiting for attachment warrants.

26. It is stated in the reply that there is significant delay of about 10 months in filing the appeal. It is stated that on 05.05.2016 mother of the appellant refused to receive summons and again on 08.11.2016 mother of the appellant refused to receive summons and stated that appellant has gone to Himachal Pradesh in connection with his business.

27. It is stated in the reply that long delay of about 10 months in filing the appeal is not because of illness of mother as appellant used to go outstation several times for few days leaving his mother alone at home and as such explanation pleaded for condonation of long delay cannot be trustworthy and appellant has to explain the each day’s delay with some cogent reason and appeal is liable to be dismissed.

28. The appellant has filed applications dated 16.02.2017 and 24.08.2018 under Section 5 of Limitation Act for condonation of delay in filing the CR No:51/2017 Page 15 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 appeal stating therein that there is delay of six months and 22 days in filing the appeal which is due to the reason that the mother of the appellant is critical patient of Diabetes whose blood sugar fluctuates from 40 msg to 700 msg and has been hospitalized on various occasions and the appellant is the only son to look after his mother. It is stated that appellant was in Delhi to attend the case filed by the respondent under Section 125 Cr.P.C. before the Family Court , Dwarka on 20.01.2017. It is stated that delay in filing the appeal is neither intentional nor deliberate but due to bonafied reasons.

29. I have heard the parties and perused the records.

30. The contention of the appellant is that he was not served in the complaint case bearing no. 4994585/2016 (Old CC no. 21/1/16) , titled as Smt. Anu Verma & Anr. vs. Natwar Lal Verma & Anr. under Sections 12,18,19,20 and 22 of the Protection of Women from Domestic Violence Act, 2005 filed by the complainant and the Trial Court has wrongly proceeded him Ex-Parte vide order dated 06.06.2016 and he came to know about the impugned judgment dated 25.07.2016 on 18.01.2017 when police officials visited his residence with Warrant of Attachment.

CR No:51/2017 Page 16 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017

31. As per order dated 22.03.2016 of Ld. Trial Court, summons were issued along with copy of complaint to the respondent (appellant herein) but the summons were received back without any report as to why service has not been effected and the Ld. Trial Court was pleased to direct for issuance of fresh summons to the respondent (appellant herein) for 05.05.2016.

32. On 05.05.2016, Ld. Trial Court was pleased to pass following order:

05.05.2016 Ld. PO is on Medical Leave.

Present: Complainant along with counsel Sh. R.S. Aggarwal.

None for accused.

Summons sent to respondent no. 1 and 2 received back unserved with report of ‘refusal’.

Let fresh summons be issued to respondent no. 1 and 2 for 06.06.2016 on filing of PF within three working days.

( Anurag Thakur) nd 2 Link MM, Mahila Court-2 Dwarka Courts, New Delhi 05.05.2016

33. As per order dated 05.05.2016 the summons sent to respondent no. 1 and 2 were received back unserved with report of refusal. However, Ld. Trial CR No:51/2017 Page 17 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 Court did not deem it appropriate to accept the report of refusal as sufficient service and ordered for issuance of fresh summons to respondent no. 1 & 2 for 06.06.2016.

34. On 06.06.2016, Ld. Trial Court was pleased to pass the following order:

06.06.2016 Present: Complainant in person with counsel.

None for respondents.

Respondents are absent despite service. Hence, they are proceeded ex-parte.

To come up for ex-parte complainant evidence and final arguments on 12.07.2016.

( Purva Sareen) MM, Mahila Court-02 Dwarka Courts: Delhi 06.06.2016

35. The plea as raised by the appellant is that he was not served of summons for 06.06.2016.

36. By way of present appeal, the appellant has challenged the impugned Ex-Parte Judgment dated 25.07.2016 passed by Ld. MM, Mahila Court-02, Dwarka, New Delhi.

37. Section 29 of DV Act provides :

There shall lie an appeal to the Court of Session within thirty days from the date on which the CR No:51/2017 Page 18 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

38. The contention of the appellant is that Ld. Trial Court was pleased to proceeded him Ex-Parte vide order dated 06.06.2016 and the case was fixed for Ex-Parte Evidence on 12.07.2016 on which date the statement of CW1 Smt. Anu Verma was recorded and the impugned Ex-Parte Judgment dated 25.07.2016 was passed.

39. The appellant has contended that no summons were issued to him for 06.06.2016 and he was not served for 06.06.2016. Hence he has been wrongly proceeded Ex-Parte on 06.06.2016.

40. As per Trial Court Record, summons were ordered to be issued to respondents vide order dated 22.03.2016 for 05.05.2016 and as per proceeding dated 05.05.2016 of the Ld. Trial Court , summons issued to respondent no. 1 and 2 were received back unserved with report of ‘refusal’. However, Ld. Trial Court did not deem it service of respondents and did not deem appropriate to act upon the report of ‘refusal’ and instead ordered for issuance of fresh summons to the respondents for 06.06.2016.

41. As per order dated 06.06.2016 of Ld. Trial Court, CR No:51/2017 Page 19 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 respondents were absent despite service and they were ordered to be proceeded Ex-Parte.

42. The plea which has been raised by the appellant is that he was not served of summons for 06.06.2016. In the order dated 26.05.2018, it was noted by this court that in the Trial Court Record, there was no process fee form filed by the appellant for issuance of process to the respondents for 06.06.2016 and the process issued to respondents for 06.06.2016 bearing report of service on the basis of which the respondents were proceeded ex-parte by the Ld. Trial Court and same were ordered to be summoned from the court concerned.

43. Thereafter the then Ahlmad in the court of Ld. MM, Mahila Court-02 filed report dated 07.07.2018 stating therein that PF was not filed for the date of hearing of 06.06.2016 in the complaint case No. 4994585/2016, titled as Anu Verma Vs. Natwar Lal. Thereafter report dated 16.10.2018 was filed by the the then Ahlmad in the court of Ld. MM, Mahila Court-02 thereby stating that although PF was filed for the date of 06.06.2016 but summons were not issued to respondent on account of non tagging of PF form in the file of complainat case and in her previous report dated 07.07.2018 she had stated that CR No:51/2017 Page 20 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 PF was not filed as the PF was kept at a wrong place and not tagged with the file and now she has gone through the summon register and has noted that although PF was filed but the summons were not issued to the repsondents for 06.06.2016 as PF was not tagaged along with the case file.

44. As per reports dated 07.07.2018 and 16.10.2018 of the then Ahlmad in the court of Ld. MM, Mahila Court-02, the complainant (respondent herein) had filed the PF in pursuance of order dated 05.05.2016 of the Ld. Trial Court for issuance of fresh process to respondent no. 1 & 2 , but Ahlmad of the court concerned had not issued the process to the respondents for 06.06.2016.

45. As per order dated 26.05.2018 of this court no process issued to respondent (appellant herein) was found in the Trial Court Record. As per report dated 16.10.2018 of the then Ahlmad in the court of Ld. MM, Mahila Court-02 the process was not issued to the respondents for 06.06.2016.

46. In the circumstances, as process was not issued to the respondent (appellanat herein) for 06.06.2016 by the Ld. Trial Court, there is no question of their being served for 06.06.2016. The observation of the Ld. Trial Court in the order dated CR No:51/2017 Page 21 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 06.06.2016, the respondents are absent despite service is not confirmed by any process issued to respondents for 06.06.2016 and it appears that Ld. Trial Court has made observations on account of inadvertence that respondents are absent despite service and respondents were wrongly proceeded Ex-Parte on 06.06.2016.

47. The contention of the appellant is that he came to know about passing of Ex-Parte Judgment dated 25.07.2016 in the first week of January, 2017 from the execution proceedings which were filed in pursuance of judgment dated 25.07.2016 and thereafter he filed the present appeal on 17.02.2017.

48. Ld. Counsel for the respondent has contended that the appellant came to know about the execution petition in November, 2016 and there is a report in the file of execution petition on the process issued to respondent ( appellant herein) for 15.11.2016, as per which he was informed about the process issued in the execution petition telephonically but despite that he did not appear in the execution petition.

49. The appellanat has contended that he was not served of the execution petition by telephone as alleged and he only came to know about the execution petition in January, 2017. The respondent CR No:51/2017 Page 22 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 has filed copy of the order dated 23.12.2016 passed by Ld. MM, Mahila Court-02, South West, Dwarka Courts in the execution petition No. 56/16 titled as Anu Verma Vs. Natwar Lal Verma @ Vijay, as per which previous order was directed to be complied for 20.01.2017, which shows that Ld. Trial Court had not accepted the report on the process issued to respondent Natwar Lal(appellant herein) of telephonic service of process of execution and has ordered for issuance of fresh process to respondent (appeallant herein) for 20.01.2017. As per record, the respondent herein has also filed copy of order dated 20.01.2017 passed by Ld. MM, Mahila Court- 02 in execution petition No. 45561/2016 titled as Anu Verma Vs. Natwar Lal Verma @ Vijay, as per which JD Natwar Lal appeared before the court on 20.01.2017.

50. In Arun Ganguli Vs. Amaresh Ganguli, RSA 222/2015, Hon’ble High Court of Delhi was pleased to refer to the decision in Collector, Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353 and was pleased to observe :

18. In Katiji (supra), the Supreme Court observed that the legislature had conferred the power to condone delay by enacting section 5 of the Limitation Act in order to CR No:51/2017 Page 23 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 enable the courts to do substantial justice to the parties by disposing of matters on merits. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice – that being the life purpose of the existence of the institution of courts. The Supreme Court observed that:

” It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

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 CR No:51/2017 Page 24 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 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 one 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 CR No:51/2017 Page 25 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 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.”

51. In Arun Ganguli Vs. Amaresh Ganguli (Supra), Hon’ble High Court has been pleased to hold:

23. The Supreme Court in Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil & Ors., (2001) 9 SCC 106 observed that where the delay is of a few days, the court should adopt a liberal approach. The Courts while exercising discretion under section 5 of the Limitation Act should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Where the delay is inordinate, the consideration of prejudice to the opposite party will be a relevant factor calling for a more cautious approach, but in the latter case where the delay is of few days, no such consideration may arise, and such a case deserves a liberal approach. The Supreme Court observed that the exercise of discretion on the facts of each case, keeping mind that in construing the expression “sufficient CR No:51/2017 Page 26 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 cause”, the principle of advancing substantial justice is the prime importance.

52. The revisionist has pleaded that there is delay of six months and 22 days in filing the appeal. Ld. Counsel for the respondent has contended that there is delay of 10 months in filing the appeal. The plea raised by the appellant is that he came to know about the impugned judgment dated 25.07.2016 in January, 2017 and this appeal was filed on 17.02.2017. In the circumstances, it cannot be said that there is any inordinate delay in filing the appeal or that the appellant would have gained any unfair advantage by the delay caused in filing the appeal.

53. In the totality of the circumstances and in the substantial interest of justice, applications dated 16.02.2017 and 24.08.2017 under Section 5 of the Limitation Act are allowed and the delay in filing the appeal is condoned.

54. Accordingly the appeal is allowed and the impugned judgment dated 25.07.2016 is set aside and it is directed that the Ld. Trial Court shall dispose of the complaint case bearing no. 4994585/2016 (Old CC no. 21/1/16), titled as Smt. Anu Verma & Anr. vs. Natwar Lal Verma & Anr. under CR No:51/2017 Page 27 of 28 D.O.J. 21.01.2019 Natwar Lal Verma Vs. Anu Verma CA No: 51/2017 Sections 12,18,19,20 and 22 of the Protection of Women from Domestic Violence Act, 2005 filed by the complainant afresh in accordance with law. Parties are directed to appear before Ld. Trial Court on 28.01.2019.

55. TCR be sent back along with copy of this judgment to the court concerned. Appeal file be consigned to record room.

Announced in the open (HARISH DUDANI) Court on 21.01.2019 Special Judge,(PC Act) CBI-I Dwarka Courts, New Delhi.

                                                      Digitally signed
                                                      by HARISH
                                    HARISH            DUDANI
                                    DUDANI            Date:
                                                      2019.01.21

 

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