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CASE NO.: Appeal (civil)  5693 of 2006

PETITIONER: Adhyaatamam \026 Bhamini

RESPONDENT: Jagdish Ambalal Shah

DATE OF JUDGMENT: 11/12/2006

BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

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

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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 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.  

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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.   Since the appeal is to the High Court, Section 5 of the  Limitation Act gets attracted on its own terms.  There was no  objection that Section 5 of the Limitation Act 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.