1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Second Appeal No. 1165 of 2005 Anita w/o Sanjay Deshmukh, Aged 27 years, Occupation Household, Resident of Kandali, Post Balapur (Akhada), Taluka Kalamnuri, District Hingoli Appellant V E R S U S Sanjay s/o Uttam Deshmukh, Aged 31 years, Occupation Private Service, Resident of Viveknagar, Nanded, District Nanded Respondent Mr.R.L. Chhabda, Advocate holding for Mr. P.R. Patil, Advocate for the appellant Mr.P.V. Mandlik, Senior Counsel for the respondent CORAM : A.V. NIRGUDE, J. DATED : 9th June, 2010 ORAL JUDGMENT 1. This appeal is filed against the order refusing to condone the delay that was caused in filing the first appeal, passed by the learned Joint District Judge, Nanded, dated 19th June, 2003, in Miscellaneous Application Requiring Judicial Inquiry No. 167 of 2002. The facts leading to the application are as under : 2. The appellant got married to the respondent in February, 2000. On 22nd March, 2001, the respondent filed petition under 2 Section 9 of the Hindu Marriage Act for seeking restitution of conjugal rights alleging that the appellant had left his company without reasonable cause. On 13th June, 2001, within three months from the date of filing of the petition, the appellant appeared before the Court through her Advocate and sought an adjournment for filing of written statement. The case was then adjourned to 2nd July, 2001. On that day, the appellant and her Advocate remained absent. On 11th July, 2001, the matter was again called out, when again the appellant and her Advocate remained absent and the learned Judge proceeded to record evidence of respondent/petitioner. On 20th July, 2001, the petition was decreed ex parte against the appellant. 3. On 31st October, 2002, the appellant filed Miscellaneous Application Requiring Judicial Inquiry No. 167 of 2002 for seeking condonation of delay of 14 months and 10 days in filing of the proposed Regular Civil Appeal against the ex parte decree passed in the marriage petition. The respondent opposed the application by filing his say. In support of the appellant’s application, she filed an affidavit in which, she stated that after engaging the Advocate in the marriage petition in June, 2001, she kept contacting her Advocate and he kept telling her that the marriage petition was pending and he was looking after it. She said, on 28th October, 2002, she came and met her Advocate and asked about progress in the marriage petition. When his answer did not satisfy her, she approached another 3 Advocate. This Advocate then learnt from record that the marriage petition was already disposed of on 20th July, 2001. On 29th October, immediately, an application for certified copies was made, and, on 31st October, the appeal as well as the Miscellaneous Application Requiring Judicial Inquiry No. 167 of 2002 were filed. The learned Joint District Judge however rejected the application. So, this second appeal. 4. The first objection raised by Shri Mandlik, the ld. Senior Counsel appearing for the respondent is that the second appeal is not maintainable against the impugned order, which did not amount to a 'decree'. However, the record shows that at the admission stage, similar objection was raised and my learned predecessor rejected it placing reliance on the Judgment of the Supreme Court in the case of Shyam Sundar Sharma V. Pannalal Jaiswal and others reported in (2005) 1 Supreme Court Cases 436. At the request of Shri Mandlik, I once again went through the said Judgment and found that apparently the second appeal would be maintainable against the impugned order. Shri Mandlik, however, contended that this appeal is not filed against the dismissal of the appeal filed by the appellant before the lower Appellate Court, and therefore, the ratio of the above mentioned Judgment would not apply to the present case. I am afraid, this argument cannot be accepted because the Miscellaneous Application Requiring Judicial Inquiry was filed along with a Memo of 4 Appeal. The Memo of Appeal would remain on record until the delay is condoned, and if the delay is condoned, the appeal would be registered. This is the usual procedure adopted by the Courts. If the application seeking condonation of delay is rejected, then automatically the proposed appeal also comes to an end and it gets dismissed. In that sense, no sooner the Miscellaneous Application Requiring Judicial Inquiry was rejected, the first appeal filed by the appellant before the District Court came to be dismissed. Such dismissal thus would give rise to a decree. The second appeal is thus maintainable. 5. Shri. Mandlik, further contended that the ground for seeking condonation of delay was not at all convincing. I have narrated the facts that were stated by the appellant in her affidavit. She has blamed her Advocate’s negligence in keeping her in dark about the progress of the proceedings in the Hindu Marriage Petition. The respondent, while opposing the application seeking condonation of delay, questioned the truthfulness of this allegation made against the Advocate saying that an affidavit of the same Advocate was not filed on record in support of the application. The learned Judge, in his impugned order, prominently mentioned this in the impugned order forgetting that it was not possible for the appellant to get an affidavit of her earlier Advocate. Her own affidavit has gone practically unchallenged, because the respondent simply denied the allegations 5 made against the Advocate. Surprisingly, this important aspect of the case is completely ignored by the learned Joint District Judge. He did not record his findings on the question as to whether he should believe the case of the applicant when she said that she was kept in dark by her Advocate till October, 2002. Apparently the case of the appellant that she was kept in dark is certainly believable. A litigant comes to a Court, appears before a Court through his or her Advocate believing that the Advocate would attend the case diligently and keep him or her well informed about the progress. So, appellant's believing the words and assurances of her Advocate was quite natural. One cannot blame her for not attending the case for about 15-16 months between June, 2001 to October, 2002. Thus, the ground mentioned for seeking condonation of delay is believable and the learned Judge of the first appellate Court committed grave error in not accepting the same for allowing the application. 6. The learned Joint District Judge rejected the application seeking condonation of delay for a very strange reason. He observed that since the respondent was then “vested with a right to file a petition for divorce on the ground that there had been no restitution of conjugal rights between the parties for the period of one year after passing of the decree of restitution”, the delay should not be condoned. He observed that the right that was accrued in favour of the respondent cannot be interfered with on the basis of mere 6 allegation against the Advocate. I find this approach of the learned Joint District Judge not only incorrect but perverse. The learned Judge should have only decided as to whether the ground mentioned in the application was sufficient and believable for condonation of the delay. Beyond this relevant consideration, the ld. Judge should not have traveled while deciding the application. He should have realized that the marriage petition seeking restitution of conjugal rights was not decided on merits. Besides, by that time, the respondent had not filed his petition for divorce. So, it was all the more necessary for the ld. Judge to condone the delay and allow the parties to get the marriage petition decided on merits. The appeal should therefore succeed. The appeal is allowed. The impugned order is set aside. The delay is condoned. The appeal be registered at the District Court Nanded and it shall be heard and disposed of expeditiously. (A.V. NIRGUDE, J.) srm/sa/1165/05/ok