HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.1486 of 2012 Date : 18-07-2014 Between:
M.Phani Kumar S/o Ranganadha Charyulu, aged about 32 years, Occ: Employee, R/o. Plot No.128, Padmavathi Colony, Nalgonda town and District.
… Petitioner and M.Amrutha W/o Phani Kumar, Aged about 29 years, Occ: Student, R/o. Dr.No.31-16-33/1, Bullemma Veedhi, Machavaram Down, Vijayawada, Krishna District.
… Respondents HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.1486 of 2012 O R D E R:
This revision, filed under Section 115 of the Code of Civil Procedure, challenges the order dated 24.02.2012 passed by the Court of the Judge, Family Court at Nalgonda in I.A.No.212/2011 in OP.No.60/2010.
2. Heard Sri PSP Suresh Kumar, learned counsel for the petitioner and Sri V.Raghu, learned counsel for the respondent apart from perusing the material available on record.
3. The facts and circumstances leading to the filing of the present revision are as under:
3.1. The petitioner herein filed OP.No.60/2010 against the respondent herein on the file of the Court of the Family Judge at Nalgonda under Sections 13(1) (ia) of the Hindu Marriage Act, 1955, seeking dissolution of marriage. In the said OP.60/2010, the learned Judge passed an ex parte decree on 09.02.2011. Seeking to set aside the said
e x parte decree, the respondent herein filed an application and along with the said application respondent herein also filed a petition under Section 5 of the Limitation Act, seeking condonation of delay of 96 days in filing the petition to set aside the ex parte decree. The learned Judge, Family Court, Nalgonda, by virtue of an order dated 24.02.2012 allowed the said I.A.No.212/2011, condoning the delay of 96 days in filing the application to set aside the ex parte decree.
3.2. Challenging the said order passed by the Court below, the present revision has been filed.
4. It is contended by the learned counsel for the petitioner that the order passed by the Court below is highly illegal and arbitrary and that the Court below grossly erred in condoning the delay in the absence of proper explanation offered by the respondent herein. It is further contended that the respondent herein instituted OP.87/2011 on the file of the Family Court, Vijayawada on 05.05.2011, seeking decree of divorce, as such, the filing of the present application in I.A.No.212/2011 is meaning less. It is further argued by the learned counsel that the conduct of the respondent herein disentitles her from getting any relief, as such, the Court below ought to have dismissed the application filed by the respondent herein.
5. Per contra, it is contended by the learned counsel for the respondent wife that the order passed by the Court below is in conformity with the provisions of Section 5 of the Limitation Act and there is neither illegality nor impropriety in the order passed by the Court below and since the Court below assigned proper reasons for condoning the delay, the jurisdiction of this Court under Section 115 of the Code of Civil Procedure is not available to the petitioner herein.
6. In the above background, the question now which needs to be considered by this Court is whether the order passed by the Court below is sustainable and tenable and whether the same warrants any correction by this Court under Section 115 of the Code of Civil Procedure?
7. The Court below, passed e x parte decree of divorce on 09.02.2011, ordering dissolution of the marriage between the petitioner and the respondent herein. In the affidavit filed in support of I.A.No.212/2011 the respondent herein categorically stated that O.P. was posted for her appearance on 19.01.2011, but unfortunately she met with an accident on 17.01.2011 in which she sustained cutting wound on her right knee which needed 12 sutures and severed back trauma and that the Doctor advised her to take complete bed rest for nearly three months. It is also to be noted that in support of the said accident and the resultant illness, the respondent herein filed a medical certificate and the prescription. The contention advanced on behalf of the petitioner herein is that as the respondent herein filed OP.No.87/2011 on the file of the Family Court, Vijayawada, seeking dissolution of marriage, the respondent herein is estopped from filing the present application. The learned counsel for the respondent herein has placed on record a Memorandum dated 19.04.2012 filed by the respondent herein before the Family Court, Vijayawada saying that she was not pressing the said OP.No.87/2011 while referring to the present OP.No.60/2010 before the Family Court, Nalgonda. Learned counsel for the petitioner has also placed on record the order dated 25.02.2013 passed by this Court in Tr.CMP.No.154 of 2012 filed by the petitioner herein wherein the petitioner herein sought transfer of OP.87/2011 from the Family Court, Vijayawada to the Family Court, Nalgonda. The said Tr.CMP.No.154/2012 was dismissed as infructuous in view of withdrawal of the OP.No.87/2011.
8. Coming to the order passed by the learned Judge, the learned Judge took into consideration the medical certificate filed by the respondent herein before the Court below. Obviously, keeping in view the nature of controversy in the original petition filed by the petitioner herein, the learned Judge allowed the application filed under Section 5 of the Limitation Act. It is a settled and well established proposition of law that when the delay is condoned by the Court below by exercising its discretion, such order cannot be interfered with unless the same is manifestly perverse. In the instant case, the Court below, took into consideration the medical evidence made available by the respondent herein and also the subject matter in the original petition filed by the petitioner herein while exercising the discretion and condoning the delay in filing order 9 Rule 13 application. In the considered opinion of this Court, the same does not suffer from any infirmity as such this Court is of the view that there are no merits in the present revision petition.
9. For the aforesaid reasons and having regard to the reasons recorded by the Court below and having regard to the discretion exercised by the Court below, this Court is not inclined to disturb the discretionary order passed by the Court below. Accordingly, the revision is dismissed. As a sequel, the miscellaneous petitions, if any, shall stand closed.
No order as to costs.
A.V.SESHA SAI, J Date:18.07.2014 grk HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.1486 of 2012 Date : 18-07-2014 grk