THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5792 of 2008 Date: .03.2011 Between: Kakani Bharathi …..Petitioner And Kakani Nageswara Rao …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5792 of 2008 ORDER This revision is filed against the order and decree, dated 12.11.2008, passed in I.A.No.381 of 2008 in O.P.No.360 of 2006, on the file of the Judge, Family Court at Visakhapatnam. The brief facts of the case are as follows: The petitioner herein is the wife of the respondent. Their marriage was solemnized on 29.11.2000. They were residing at Jagadhalpur, Chattisgarh State. They are blessed with a son. The respondent filed O.P.No.360 of 2006 seeking dissolution of their marriage before the Family Court at Visakhapatnam. The petitioner herein was set ex parte, as a result of which the petition filed by the respondent was allowed, by order and decree, dated 14.3.2007. The petitioner filed an application on 13.5.2008 inter alia contending that her husband had played fraud on her and on the Court and obtained ex parte order by misrepresentation and concealing the real facts. It is her specific case that she was living with the respondent as on the date of passing ex parte decree of divorce on 14.3.2007. It is her specific case that she was living with the respondent from the date of their marriage till the night of 13.4.2008 at Brundhavana Colony, Santoshi Ward, Jagadhalpur, Chattisgarh State and that on 13.4.2008, respondent beat her black and blue and had driven her out of their home around 9.30 p.m. and did not allow her to enter into their house. It is also her case that as there was no other alternative, she had reported the matter to the police, Jagadhalpur and when the police asked called the respondent, he had showed an order copy of ex parte divorce decree to her shock and surprise. It is also her case that in those circumstances, she came to Visakhapatnam and enquired about the same and came to know that the respondent had obtained a decree of dissolution of marriage by an ex parte order and then, she filed an application to set aside the ex parte decree along with the application to condone the delay of 337 days in filing the said application. The respondent filed a counter denying the allegations made by the petitioner. His specific case is that on 16.4.2008, the petitioner had suddenly rushed into his house by shouting loudly in unparliamentary language in an arrogant manner and taken away the gold ornaments worth of Rs.3,00,000/- and cash of Rs.20,000/- from the almirah and that then he went to the police station and lodged a complaint on 16.4.2008. It is also his case that the petitioner intentionally lodged a counter complaint against him on 26.4.2008 with false allegations. It is also his case that petitioner has knowledge about the ex parte decree and that she kept quiet without any reasonable cause and that there are no grounds to condone the delay of 337 days. The learned Judge, Family Court, Visakhapatnam observed that when the case of the petitioner is that she was driven away out of their house on 13.4.2008, she ought to have filed the petition to set aside ex parte decree immediately after 13.4.2008. It is also observed that the respondent has filed a letter addressed by the petitioner to the S.H.O., Jagadhalpur Police Station dated 26.4.2008 in which it is mentioned that on 14.4.2008, she went to Vijayawada, but not to Visakhapatnam and therefore, there are no grounds to condone the delay. The learned counsel for the petitioner has submitted that the Court below failed to consider the genuine reason shown by the petitioner for non- appearance on the date when she was set ex parte. It is also submitted that the petition under Order 9 Rule 13 C.P.C. was filed within 30 days from the date of knowledge of ex parte decree and therefore, within the prescribed period of limitation. It is also submitted that the lower Court failed to consider that a fraud was played by the respondent in obtaining ex parte decree and fraud vitiates the entire proceedings. He has further submitted that the order of the Lower Court suffers from basic inconformity since no reasons have been recorded for the decision and the orders which are not supported by any reasons, have to be set aside on that ground itself. In support of his contentions he has relied on the Judgments in the cases between Smt.Swaran Lata Ghosh Vs. H.K.Banerjee and others[1], Collector, Land Acquisition, Anantnag Vs. Katiji[2], Aziz Ahmed Khan Vs. I.A.Patel[3], N.Balakrishnan Vs. Krishnamurthy[4], State of A.P. Vs. T.Suryachandra Rao[5] and Nahar Enterprises Vs. Hyderabad Allwyn Ltd.[6]. The learned counsel for the respondent submitted that ex parte decree was passed on 14.3.2007 and that it is incorrect to say that the petitioner was residing along with the respondent till 13.4.2008 at Jagadhalpur and that the petitioner has failed to explain the reasons for delay. It is also his submission that in the complaint given to the police on 16.4.2008, the petitioner claimed that she went to Vijayawada, but when she filed an application before the lower Court, she had stated that she directly came from Jagadhalpur to Visakhapatnam and, therefore, the lower Court rightly found that the petitioner did not file the petition immediately and in view of the same, there are no reasons to condone the delay. It is also his submission that though the word “sufficient cause” has to receive liberal view, but it must squarely fall within the concept of reasonable time and the conduct of the party should not be blame worthy. It is also his submission that the condonation of delay is a discretionary power of the Court and once a discretionary power has been exercised, the same cannot be disturbed in the revision. In support of his contention, he has relied on the Judgments in the cases between Mothukuri Ranga Rao Vs. Royyala Laxminarayana[7] and Balawant Singh Vs. Jagdish Singh[8]. The points that arise for consideration is: i) Whether the impugned order is sustainable or not? ii) What should be the approach of Courts in dealing with the applications to condone the delay? iii) Whether an ex parte order not supported by any reasons is perverse? POINTS 1 AND 2: It is always better if the cases are disposed of on contest and on merits. The Courts must be liberal in condoning the delay. What is to be seen is whether a sufficient cause has been shown to condone the delay or not. Sufficient cause does not mean that there should be strict proof of explaining the delay as in the case of proving a charge in the criminal case. The Court must see whether the version of petitioner is probable and reasonable or not. Where in a case it appears that there are no reasons to condone the delay and that the petitioner was grossly negligent or that he approached the Court with unclean hands, the Courts only be strict in considering the applications to condone the delay even if any latches are found, the Court may consider whether the ends of justice may be met by imposing reasonable costs to other side or to the concerned Legal Services Authority. The procedural law helps the Court to regulate the proceedings for ultimately rendering justice to the parties. The Courts must always consider and give preference for doing substantial justice to the parties rather than non suiting them on technicalities. The approach of the Courts should be pragmatic, they must understand the ground, realities of life and troubles of the litigant public, particularly where poor people, women or children are involved and their approach should not be pedantic. The Apex Court in Collector, Land Acquisition, Anantnag Vs. Katiji[9], observed as follows: “3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to 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 for the existence of the institution of courts. 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 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 done 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 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. In case of Nahar Enterprises Vs. Hyderabad Allwyn Ltd. (6 Supra), it was held that the Court should take into consideration all the attending facts and circumstances for setting aside the ex parte decree. The learned counsel for the respondent has relied on the Judgment in case of Mothukuri Ranga Rao Vs. Royyala Laxminarayana (7 Supra). In that case, the petition filed under Section 32 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, was dismissed. The appeal was filed along with the application to condone the delay of 129 days holding that the delay was not set aside and the appeal was not entertained and the matter was challenged in C.R.P.No.5704 of 1999. However, the same was also dismissed for non-prosecution on 9.6.2000. However, the same matter was again challenged in C.R.P.No.6929 of 2005 in which this Court condoned the delay of 2081 days in filing the revision before this Court and the matter was remitted to Joint Collector to take up the delay condonation petition and to pass appropriate orders. Then the Joint Collector condoned the delay. Then this Court observed that the Joint Collector seems to have not applied his mind. In the above peculiar circumstances, the matter was again remitted back to the Joint Collector with a specific direction to consider the matter afresh and to decide the same duly applying his mind. The facts of that case are entirely different and are not applicable to the case on hand. The learned counsel for the respondent has also relied upon the Judgment between Balawant Singh Vs. Jagdish Singh (8 Supra). In that case, the sole petitioner died on 28.11.2007 and no steps were taken to bring on record the legal representatives of the deceased appellant for a considerable period of time. An application was filed to bring the legal representatives along with another application to condone the delay of 778 days. In that case, it was found that the application filed by the applicants lacks in details. Even the averments made were found to be not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. In the above circumstances, the application was dismissed. It is clear that facts of that case are different. Coming to the facts of this case, the petitioner’s case is that she had no knowledge about the passing of ex parte decree and that no summons were served on her and that she was living with the respondent till 13.4.2008 and on that day, the respondent beat her and did not allow her to enter into their house and therefore, she went to police station, Jagadhalpur and when the police called the respondent, the respondent had shown the ex parte decree obtained against her. Thus, according to her on 13.4.2008, she had learnt about the ex parte decree for the first time. The lower Court observed that if at all the petitioner had come to know about the passing of ex parte decree on 13.4.2008, she would have filed the application immediately thereafter. It has to be seen that the application was filed on 13.5.2008, i.e., within 30 days from the date of knowledge. It has to be seen that according to the petitioner, she was at Jagadhalpur which is in Chattisgarh, she had to come all the way from Jagadhalpur to Visakhapatnam. The lower Court failed to consider that the petitioner was a woman and she had to travel from Jagadhalpur to Visakhapatnam. It appears that the address of the petitioner’s native place is Vijayawada as per the cause title in O.P.No.360 of 2008. The lower Court failed to consider that the petitioner or any person require some amount to travel all the way from Jagadhalpur to Visakhapatnam and in all probabilities, she might have gone to Vijayawada to take the assistance of her close relatives to accompany her to Visakhapatnam and to consult an advocate to verify the Court record and to file an application to set aside the ex parte decree passed against her. In the facts and circumstances of the case, I am of the view that filing an application within a period of 30 days from the date of knowledge, is quite reasonable and it cannot be said that she failed to file the application within reasonable time after coming to know about the passing of an ex parte decree. It has to be seen that the Legislature in their wisdom provided 30 days time to file an application to set an ex parte order or decree “when 30 days time is provided under the statute, it cannot be said that the petition should be filed immediately on the very next day”. The next reason assigned by the lower Court is that the respondent filed a letter, dated 26.4.2008, submitted by the petitioner to the police, Jagadhalpur, wherein it was mentioned that on 14.4.2008, she went to Vijayawada and not to Visakhapatnam. Of course, when she filed an application before the lower Court to condone the delay, she had mentioned that she went to Visakhapatnam from Jagadhalpur. Of course, she did not mention how she travelled from Jagadhalpur to Visakhapatnam. It cannot be said that she made a false statement merely because she had mentioned in a letter addressed to the police, Jagadhalpur that she went to Vijayawada on 14.4.2008. Even, if she had gone to Vijayawada and from there she went to Visakhapatnam that cannot be said to be a false statement. It appears that merely because the petitioner did not mention that she went to Visakhapatnam via Vijayawada, her version is false and unbelievable. Thus, it is clear that the lower Court has assigned totally unreasonable reasons to dismiss the application filed by the petitioner. The lower Court failed to consider that it is a specific case of the petitioner that fraud was played on her and also on the Court. It is obligatory on the part of the Family Court, Visakhapatnam to enquire into whether summons have been duly served upon her and whether there is any truth in the allegations made by the petitioner that a fraud was played on her and also on the Court. It has to be seen that fraud vitiates the entire proceedings. In case of State of A.P. Vs. T.Suryachandra Rao (5 Supra), the Apex Court observed as follows: “10. ‘Fraud’ as is well known vitiates every solemn act. Fraud and justice never dwell together…….” “11. ‘Fraud’ and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence…….” The Apex Court has also referred to the observations in Lazarus Estates Ltd. Vs.Beasley[10] as under: “No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” The learned counsel for the petitioner has also argued that the very order dissolving the marriage is not supported by any reasons. It appears that there is much force in the contentions of the counsel for the petitioner that the ex parte decree is vitiated as not supported by any reasons. He had shown the copy of the order passed in O.P.No.360 of 2006, dated 14.3.2007, which is as follows: 1. This is a petition filed by the husband/wife of the respondent under Section 13 (1) (ia) (ib) of the Hindu Marriage Act, for dissolution of the marriage dated 29.11.2000 performed between the petitioner and the respondent on the ground of cruelty and for costs of the petition. 2. P.W.1 evidence affidavit filed. Claim proved. Petition allowed. It may be a fact that the respondent did not appear before the Court and consequently she was set ex parte. Merely because a party is set ex parte, it does not mean that the Court is bound to allow a petition or decree the suit. It is the duty of the Court to examine whether it has got jurisdiction to entertain the suit? Whether a suit is maintainable and whether the evidence adduced proves the case of the plaintiff or not? There are several special enactments whereby and whereunder the Civil Court’s jurisdiction is expressly bared. There may be a claim or a suit for recovery of money, which may be apparently barred by limitation. Therefore, it becomes the duty of a Court to examine whether the plaintiff or the petitioner has made out his case or not. Even when the defendant is set ex parte, the plaintiff has to prove his case when the plaintiff fails to prove his case, the suit has to be dismissed. Therefore, it becomes obligatory on the part of the Court to examine whether the plaintiff has made out his case or not? In case between Smt.Swaran Lata Ghosh Vs. H.K.Banerjee and others (1 Supra), relied by the learned counsel for the petitioner, the Apex Court observed as follows: “6. Trial of a civil dispute in court is intended to achieve, according to law and the procedure of the court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the court has decided against him, and more so, when the judgment is subject to appeal. The appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plaint. In case between Aziz Ahmed Khan Vs. I.A.Patel (3 Supra), this Court observed as follows: “The Courts should apply their minds to the facts of the case and the points at issue and give a reasoned judgement thereon so that not only their own conscience may be satisfied but also the litigants should have satisfaction that all their evidence has been evaluated and their contentions and arguments duly considered. This is of vital importance inasmuch as the whole edifice of confidence of the litigants in Courts is built, upon the quality of judgements. The Courts, therefore, have to necessarily take care that their judgements conform to the provisions of law and are products of sound reasoning. In the instant case the judgement of the trial Court which we have extracted above is no judgement at all. The appeal must be allowed on that basis also. It is further observed as follows: “The absence of the defendant thus does not dispense with the responsibility of the plaintiff to prove his case to the satisfaction of the Court. He has to discharge his onus in the same way as he should have done in the presence of the defendant. He has to prove his case with the help of the material which is legal, evidence. His burden is in no way lightened by the absence of the defendant. In fact the responsibility of the Court also has increased as it has to reach its conclusions without the assistance of the defendant who, if present, would have raised all questions with regard to admissibility of evidence and cross-examined the witnesses and advanced arguments in his favour. The Court cannot pass a judgement in favour of the plaintiff unless the suit is maintainable the claim a set up is established by the material on record and the reliefs claimed can be lawfully granted. Thus, it is clear that the settled legal position is that even in a case where the defendant is set ex parte, the Court has to pass a reasoned Judgment and cannot and should not decree the suit merely because, the defendant is set ex parte. In this case, the petitioner has shown sufficient cause to condone the delay. In view of the above discussions, it has to be held that the lower Court committed an error in not condoning the delay in filing the petition to set aside the ex parte order by the petitioner. In view of the same, the impugned order is set aside. Accordingly, the Civil Revision Petition is allowed. Subsequently, I.A. filed by the petitioner to condone the delay stands allowed. No costs. ______________________________ JUSTICE B.CHANDRA KUMAR Dt: .03.2011 Tjmr THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5792 of 2008 DATE: .03.2011 THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR P.D. ORDER IN C.R.P.No.5792 of 2008 [1] 1969(1) Supreme Court Cases 709 [2] (1987) 2 Supreme Court Cases 107