SUPREME COURT OF INDIA
Adhyaatamam Bhamini
Vs
Jagdish Ambalal Shah
Appeal (Civil) 5693 of 2006
(H. K. Sema and P. K. Balasubramanyan, JJ)
11.12.2006
P. K. BALASUBRAMANYAN, J.
Leave granted.
Heard the appellant in person and learned counsel for the respondent.
1. The appeal challenges the order of the High Court of Bombay in Review
Petition No. 2 of 2005 in Civil Application (M) No. 1 of 2004 in Family Court
Appeal ST No. 40517 of 2003. The appellant had filed a petition in the Family
Court B-40 of 1992 seeking a declaration that she is a joint owner or a half
owner of the properties scheduled to the petition. The appellant and the
respondent were wife and husband. They married on 15.11.1959. They were living
together. They begot two sons. The respondent filed a petition for divorce
against the appellant on 26.2.1990. The grounds urged were cruelty and
desertion attracting Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955. The appellant in her turn filed
the present proceeding seeking a declaration of her half right to the
properties that stood in the name of her husband, her husband and others and
for a perpetual injunction restraining the husband from alienating the
properties.
2. The petition for divorce was allowed by the family court sometime in 1993 by
granting a decree for divorce on the grounds put forward. The appellant
challenged that decree unsuccessfully in the High Court. The appellant
thereafter approached this Court by way of further appeal. This Court confirmed
the decree for divorce but modified the quantum of alimony payable by the
husband and raised it to Rs.5, 000/- per month from Rs.1, 000/- per month. That
was on 5.2.1997. The marital relationship was thus finally put an end to by the
decree.
3. The appellant pursued her proceeding for declaration and injunction relating
to the properties. The family court, after trial, by judgment dated 24.1.2003,
dismissed the claim. It held that the appellant had failed to prove that the
properties standing in the name of the respondent and respondent and others,
were joint acquisitions or that she had a half share therein. It may be noted
that this Court had while confirming the decree for divorce, left open the
claim of the appellant regarding the properties, to be pursued in the family
court.
4. Feeling aggrieved by the dismissal of her claim in respect of the immoveable
properties, the appellant filed an appeal before the High Court of Bombay as
Family Court Appeal ST No. 40517 of 2003. That appeal was a delayed one. The
appellant therefore filed Civil Application (M) No. 1 of 2004 for condoning the
delay of 81 days in filing the appeal. The court found on a calculation, which
had not been indicated in the application by the appellant, that the delay was
of 62 days. The respondent resisted the application pleading that no sufficient
cause was made out for condoning the delay. The High Court after noticing that
in such matters a liberal approach is generally adopted, held that in the case
on hand, the appellant had not made out sufficient cause for condoning the
delay. Before consequently disposing of the appeal as belated, the High Court
also heard learned counsel on merits of the appeal in the light of the
depositions of the witnesses and the other relevant material produced. The High
Court found that there was no reason to differ from the conclusions of the
family court regarding the title to the properties and that the finding that
the appellant had no joint ownership in the properties was justified. Thus, the
application for condoning the delay in filing the appeal and the appeal were
dismissed by the High Court.
5. The appellant thereupon filed R.P. No. 2 of 2005 seeking a review of the
order in the application for condoning the delay in filing the appeal. The
Division Bench of the High Court found no ground to review the order earlier
made. Thus, the review petition was dismissed. The appellant challenges the
order on the review petition passed on 13.7.2005 in this appeal.
6. Of course, this Bench has recently held in Kumaran Silks Trade (P) Ltd. (2)
Vs. Devendra and ors. 2006 (8) SCC 555 that no Petition for Special Leave
to Appeal under Article 136 of the Constitution Of India,
1950 can be maintained against an order refusing to review a judgment.
But in this case, taking note of the circumstances as a whole including the
extent of the delay in filing the appeal, we have thought it appropriate to
consider whether the High Court was justified in refusing to condone the delay
in filing the appeal in the first instance.
7. The High Court has noticed that though originally in the petition for
condoning the delay, the cause therefor had been put at the door of the
appellant, in the petition for review the delay is attributed to inaction on
the part of the counsel who was appearing for the appellant at the earlier
stage. What is seen is that the appellant received the certified copy of the
judgment of the family court, according to her, after some effort. Thereafter,
she left for the United States of America. After she came back, the appeal was
filed. Her case is that she had entrusted the matter with her counsel for
filing the appeal in time even before she left for the United States of
America. On her return, she found that counsel had not filed the appeal.
Thereafter, she ensured that the appeal was filed along with a petition for
condoning the delay in filing the same, which of course, she had signed. Her
present case is that due to the absence of care on the part of her counsel that
appeal was not filed in time. But in the application filed earlier, the
suggestion was that it was due to her illness and her having to go to the
United States that the delay occurred. The High Court found that there was no
sufficient cause made out for condoning the delay. When she came up with a
different story and tried to put the blame on her counsel, the High Court held
that there was no ground made out for review of its earlier order.
8. It is true that the appellant came forward with an inconsistent case when
she sought the review of the earlier order. But the fact remains that even
while confirming the decree for divorce, this Court had left open the claim of
the appellant in respect of the properties to be adjudicated in the proceeding pending
before the family court, namely, the present proceeding. The family court has,
on appraisal of the materials before it, come to the conclusion that the
appellant has not made out her claim in respect of the properties. The appeal
sought to be filed by the appellant was no doubt delayed by 62 days. It is also
true that the High Court while declining to condone the delay had also
generally referred to the merits of her claim on the evidence adduced.
9. The delay as found by the High Court was only of 62 days. No doubt, under
Section 19 of the Family Courts Act, 1984, the time
for filing an appeal is only 30 days from the date of judgment or order of a
family court. There is no exclusion of the application of Section 5 of the Limitation Act, 1963. Since the appeal is to the High
Court, Section 5 of the Limitation Act, 1963 gets
attracted on its own terms. There was no objection that Section 5 of the Limitation Act, 1963 was not applicable. In that
situation, the only question was whether the appellant had made out sufficient
cause for condoning the delay in filing the appeal. We do find some
inconsistency in the case of the appellant as noticed by the High Court. We
also find that the High Court had made a cursory examination of the merits of
the claim of the appellant before dismissing the application for condonation of
delay. But, in the circumstances, we feel that the appellant ought to be given
an opportunity to argue her appeal on merits. This is without any reference to
the merits or demerits of her appeal. But in view of the varying stands adopted
by her, we feel that it would be appropriate to grant her that opportunity only
by putting her on terms. Considering the prior relationships between the
parties, we think that the costs to be paid by the appellant to the respondent
in this Court need not be a very substantial sum, though obviously, it could
not be an insignificant sum. In that view, we order that this appeal will stand
allowed, the orders of the High Court will stand set aside and the delay in the
appellant filing the appeal before the High Court will stand condoned on
condition that the appellant deposits in the High Court of Bombay, a sum of Rs.
10, 000/- towards costs thrown away within a period of six weeks from today. On
the said sum of Rs. 10, 000/- being deposited, it will be open to the
respondent to immediately withdraw the same unconditionally. In the event of
the deposit being made within time, the appeal would be heard afresh by the
High Court on merits and disposed of in accordance with law. In case, the costs
as indicated above are not deposited, the order of the High Court challenged
herein will stand confirmed and this appeal will stand dismissed.