Court No. - 44
Case :- FIRST APPEAL No. - 789 of 2021 Appellant :- Sushil @ Sushil Kumar Respondent :- Smt. Pratima Chaudhary Counsel for Appellant :- Amit Shukla
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
Heard learned counsel for the appellant and perused the record.
The present appeal is directed against the order dated 29.1.2020 passed by the Principal Judge, Family Court, Meerut in Misc. Case No. 45 of 2017 (Sushil Kumar vs. Smt. Pratima Chaudhary) on an application under Section 5 of the Limitation Act filed in a restoration application under Order IX Rule 13 CPC.
The relevant facts to decide the matter are that the appellant had filed a petition under Section 9 of the Hindu Marriage Act, which was dismissed in default on 27.3.2017. As per own admission of the appellant, he came to know about the said fact on 30.4.2017 itself when he had reached at the chamber of his Advocate. The appellant moved an application for getting the certified copy of the order which was received by him on 4.5.2017. Thereafter, the application under Order IX Rule 13 CPC was filed on 22.5.2017 but it was not supported by any affidavit. The matter had been kept pending for two years and the affidavit was filed on 5.3.2019 by the appellant with the assertion that he had sufficient explanation for the delay. The reason for the delay given by the appellant that he could not arrange the fee of the Advocate and necessary expenses to file the affidavit was disbelieved by the Family Court for the simple reason that only ten rupees was the court fee for filing of the affidavit in support of the application under Order IX Rule 13 CPC.
Nothing had been brought on record by the appellant to substantiate his income or any genuine difficulty being faced by him in approaching the Court within time. As the period of two years taken in filing the affidavit to explain the delay had not been explained by the appellant, we do not find any infirmity in the order impugned.
As regards the vague assertion of the appellant that his mother was suffering from cancer and on account of her protracted long illness, he could not approach the family court, we found that the assertions in this regard are as vague as they could be. The Family Court has also recorded that the appellant has not been able to give any certificate of his illness.
For the aforesaid, we do not find any merit in the appeal. The appeal is dismissed, accordingly.
Order Date :- 27.10.2021 Brijesh