IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MP(M) No. 451 of 2009 in Cr. Revision No.71 of 2009 Judgment reserved on : 27.10.2009 Date of decision : 4.12.2009 ____________________________________________________ Man Singh …Petitioner. Versus Hari Devi …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the petitioner : Mr. Virender Singh Chauhan, Advocate. For the Respondent : Mr. V.D. Khidtta, Advocate Kuldip Singh, Judge This is an application under Section 5 of the Limitation Act for condonation of delay in filing the revision against the order dated 18.3.2008 passed by learned Sessions Judge, Shimla in Cr. Revision Petition No.13-S/10 of 07. 2. The case of the petitioner is that non-applicant/respondent had filed a revision before learned Sessions Judge, Shimla on 17.4.2007 and on 26.4.2007 learned Sessions Judge had issued notice to the applicant who could not be served for want of correct address. Thereafter fresh notice was issued to the applicant for 27.2.2008. The Process Server vide report dated 13.2.2008 reported that the ________________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 notice of the applicant had been handed over to his nephew who undertook to hand over the same to the applicant. The nephew of the applicant never told the applicant that he had received any notice from the Process Server. Service on the applicant was not properly affected; the applicant was not served personally. 3. In the year 2007 applicant got fracture in his ankle and remained hospitalized from 5.8.2008 to 31.8.2008, thereafter he was advised rest by the doctor. The applicant from September, 2007 to March 2008 was in his native place and he never received any notice from the Court of learned Sessions Judge, Shimla. The applicant resumed his duty in March, 2008. The delay in filing the revision according to applicant was of 380 days, therefore he prayed for condonation of delay. The revision alongwith condonation of delay application was filed on 2.6.2009. According to registry delay is of 11 months and 9 days. 4. The application was contested by non-applicant by filing reply, in which she has stated that an amount of Rs.2000/- per month maintenance was granted by learned Judicial Magistrate Ist Class, Court No.3, Shimla against which she had filed revision and the learned Sessions Judge has allowed the revision and increased the maintenance from Rs.2000/- to Rs.5000/- per month from the date of filing of the application i.e. 16.9.2005. The non-applicant had filed execution petition and till the filing of the reply in August, 2009 the arrears of maintenance have swelled to Rs.2,35,000/- as against Rs.8000/- paid by applicant during the pendency of the application 3 under Section 125 Cr.P.C. before learned Judicial Magistrate Ist Class, Court No.3, Shimla. The applicant had paid Rs.20,000/- in July/August , 2009 only when sale order was issued by learned Judicial Magistrate in the execution petition. The applicant has not given any sufficient cause for delay in filing the revision. The non-applicant has prayed for dismissal of the application. 5. The applicant has filed supplementary affidavit dated 30.8.2009 in which he has stated that his nephew never told him that he had received any notice from the Court. In the supplementary affidavit the applicant has also stated that his nephew resides separately as a result of partition between the applicant and his brother i.e. father of the nephew. The Process Server has given wrong report of handing over of the notice to the nephew. 6. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the applicant has relied N. Balakrishnan vs. M. Krishnamurthy AIR 1998 SC 3222 and Hans Raj and others vs. Dev Raj and others Latest HLJ 2008 (HP) 1277. In Hans Raj the Court has taken the view that sufficient cause within the meaning of Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to party. In N. Balakrishnan supra, it has been held that if the explanation does not smack of malafies or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against 4 acceptance of the explanation. While condoning delay the court should not forget the opposite party altogether. 7. On 17.11.2007 the learned Sessions Judge had ordered service of petitioner herein for 29.12.2007. On 29.12.2007 the learned Sessions Judge had ordered notice not received back after service; let afresh notice to respondent be issued for 27.2.2008. The notice for 29.12.2007 was served on petitioner herein through brother Hari Singh on 24.12.2007. It appears when the notice was not returned even though it was served; therefore, the learned Sessions Judge on 29.12.2007 had ordered that notice not received back after service and fixed the case for service of petitioner on 27.2.2008. 8. The notice for 27.2.2008 was served on petitioner through his nephew Narotam Singh on 13.2.2008. The Process Server who served the notice on Narotam Singh has given his affidavit on the reverse of notice dated 27.2.2008 which has been attested by the Superintendent. The case of the applicant is that he is separately living, nor his nephew informed him about the service of notice for the date 27.2.2008. 9. The Section 64 Cr.P.C. provides where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. The explanation to Section 64 Cr.P.C. further provides that a servant is not a member of the family within the meaning of this 5 section. The applicant has taken the plea that his nephew is residing separately after partition between applicant and his brother i.e. father of the nephew. It has come on record that notice dated 29.12.2007 was served on Hari Singh brother of the applicant. On the reverse of noticed dated 29.12.2007 it has been mentioned that applicant and his brother Hari Singh are living together, similarly on the reverse of notice dated 27.2.2008 it has been stated that Narotam Singh nephew of the applicant is living with the applicant. The applicant has not imputed anything against Process Server Hans Raj who served the notice on Narotam Singh nephew of the applicant. In case Hari Singh and Narotam Singh were not living with the applicant then in normal course they would not have accepted service of notice which was addressed to applicant. Hari Singh and Narotam Singh have not filed any affidavit in support of the contention of applicant that they were not living with the applicant as member of the family of applicant when notice dated 29.12.2007 and notice dated 27.2.2008 were served on them respectively. Thus, the stand of the applicant is falsified from the material on record that applicant, his nephew on whom the notice for the date 27.2.2008 was served were not living together when Narotam Singh nephew of applicant had received notice. No fault can be found with the service of notice on the nephew of applicant. 10. There is no denial of the fact that in a given situation liberal view is to be taken for condonation of delay but simultaneously as held in N. Balakrishnan case by the Apex Court when there is a reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against 6 acceptance of the explanation, the present case falls in this category. The non-applicant has submitted that despite maintenance order the applicant is not paying maintenance to her. The applicant has not come forward to explain the delay with clean hands. He has taken false stand that he and his nephew who was served with the notice were living separately. In fact service of notice on nephew for the date 27.2.2008 has not been denied by applicant, what has been projected is that said nephew is living separately and the said nephew never informed the service of notice to applicant, which applicant has miserably failed to establish. In these circumstances no indulgence can be shown to the applicant for condonation of delay. There is no merit in the application which is accordingly dismissed. December 4, 2009. (Kuldip Singh), (sks) Judge.