Court No. - 72
Case :- APPLICATION U/S 482 No. - 6896 of 2019 Applicant :- Jay Narayan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Saurabh Tripathi,Jalaj Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Ajit Kumar,J.
This application is directed against the order dated 10th December, 2018 whereby the application for condonation of delay has been allowed but on a cost of Rs.25,000/- whereas the restoration application is still pending.
The contention advanced by the learned counsel for the applicant is that cost imposed by the court below is too excessive and that the court below has not taken pragmatic view of the matter in considering the application for condonation of delay. It is further argued that while restoration application is still pending mere allowing the application under Section 5 of Limitation Act will not result in automatic grant of recall application and, therefore, the court should have imposed a reasonable cost.
Per contra, the argument advanced by the learned Additional Government Advocate is that the recall application has been filed in the year 2018 in respect of an order of 2017 in a pending maintenance application of the year 2014 and, therefore, serious prejudice will be caused and, therefore, the order is justified.
Having heard learned counsel for the parties and having perused the records, I am of the opinion that since the application of Section 5 of Limitation Act for condonation of delay has been allowed, the argument, therefore, of the learned counsel for the applicant that the court below ought to have imposed a reasonable cost is justified and I am also of this opinion that this imposition of cost is nothing but balancing the equity between the parties and the question of cost should have been considered at the time of recall application against the ex parte judgment. Under the circumstances, I am of this opinion that cost of Rs.10,000/- would be sufficient for allowing Section 5 of Limitation Act.
Accordingly, under the facts and circumstances of the present case, I hereby direct that in the event the applicant deposits Rs.10,000/-by 10th March, 2019 pursuant to the order impugned dated 10th December, 2018, his recall application in respect of the ex parte order dated 12th September, 2017 shall be dealt with on merits. It is also directed that while the recall application shall be dealt with, it will not be dismissed only on the ground of any technicality involved because in the matter of maintenance not only the rights of wife to get the maintenance is involved but the financial capacity and the financial status of the husband is of equal importance. The Court, is of the opinion, therefore, that the matter normally should be dealt with on merits after giving full opportunity of hearing to the parties.
However, at this stage, it is hereby ordered that recall application of the present applicant shall be dealt with on merits and shall be decided in accordance with law after giving full opportunity of hearing to the parties.
In the event of default of deposit of Rs.10,000/- by the present applicant as directed hereinabove, the court below shall be at liberty to proceed with the matter in accordance with law.
This application is, accordingly, disposed of with the aforesaid directions and observations.
Order Date :- 22.2.2019 Atmesh