@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashHeard the learned Counsel appearing for the Petitioner as well as the learned Counsel appearing for the Respondent.
2. This Civil Revision Petition has been preferred under Article 227 of the Constitution of India challenging the order dated 09.12.2010 made in I.A. No. 58 of 2009 in H.M.O.P. No. 45 of 2008 on the file of the Subordinate Judge, Dharapuram.
3. Learned Counsel appearing for the Petitioner submitted that the Petitioner being the husband of the Respondent filed an H.M.O.P. No. 45 of 2008 before the court below u/s 13 of Hindu Marriages Act seeking divorce. In spite of service of notice, the Respondent herein was called absent and set exparte. Based on the exparte evidence, the court below allowed the petition and granted divorce in favour of the Petitioner herein. However, the Respondent herein filed I.A. No. 58 of 2009 u/s 5 of Limitation Act and Section 151 of CPC to condone the delay of 389 days in filing the petition to set aside the exparte decree.
4. According to the learned Counsel appearing for the Petitioner, the delay was not satisfactorily explained by the Respondent herein. However, the court below liberally allowed the petition which would prejudice the rights of the Petitioner herein. Learned Counsel further contended that after the exparte order, the Petitioner herein married another lady as there was no legal bar in solemnizing the subsequent marriage after the decree of divorce passed by the court below.
5. Per contra, the learned Counsel appearing for the Respondent submitted that the Petitioner has not stated anything about the name and other details of the alleged second marriage with another lady. Hence, the said defence cannot be accepted as true. According to the learned Counsel appearing for the Respondent, the impugned order was passed by the court below by exercising its judicial discretion, whereby the delay has been condoned by the court below.
6. In support of his contention, the learned Counsel appearing for the Petitioner relied on the following decisions rendered by the Supreme Court and this Court:
In Parimal v. Veena @ Bharti 2011 (4) MLJ 540 (SC), the Hon''ble Supreme Court has held that sufficient cause must be shown for allowing the petition filed u/s 5 of the Limitation Act along with the petition to set aside the exparte decree under Order IX Rule 13 Code of Civil Procedure. In the aforesaid decision, the Hon''ble Apex Court has held that the matter does not fall within four corners of Order 9 Rule 13 CPC and the Court has no jurisdiction to set aside the exparte decree. In the aforesaid decision, the Hon''ble Apex Court has held thus:
Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.
In this case, it is seen that the court below has exercised its discretion liberally holding that sufficient cause was shown and allowed the petition in favour of the wife who is the Respondent herein so as to dispose the HMOP, on merits.
In Murugan and Anr. v. K. Elumalai and Anr. 2010 4 Law Weekly 180, this Court has held that blaming the lower court counsel to condone the delay of 586 days would not be accepted, after service of notice to the Petitioners therein. Hence the view of the court below in dismissing the petition filed u/s 5 of Limitation Act, was accepted by this Court as per the decision cited above. In the instant case, having accepted the plea of the wife who is the Respondent herein, the court below found that there was sufficient cause to condone the delay of 389 days and accordingly the petition was allowed by a conditional order, so as to dispose the H.M.O.P., on merits. Learned Counsel for the Respondent submitted that the conditional order passed by the court below was also complied with by the Respondent herein.
In Vijayalakshmi v. Kannappan 2010 (2) CTC 654, this Court has held that a divorced person can marry again, when the said spouse is successful of having a decree for divorce in his or her favour, however has to wait for the statutory period as stipulated under the Act. As the husband therein contracted second marriage, 16 months after the decree being confirmed by Appellate Court, it was held that the second marriage could not be held to be void and accordingly the petition filed by the previous wife to condone the delay of 550 days in preferring the Civil Miscellaneous Second Appeal was decided lack of sufficient cause and accordingly the same was dismissed.
The aforesaid decision is no way applicable to the facts and circumstances of the case, on the materials available on record.
In
Learned Counsel for the Respondent submitted that the judicial discretion has been properly exercised by the court below. Hence, the aforesaid decision is not applicable to the facts and circumstances of the case.
7. The court below has liberally exercised its judicial discretion and allowed the petition filed u/s 5 of the Limitation Act and condoned the delay of 389 days in filing petition under Order IX Rule 13 CPC It has been well settled by the Hon''ble Apex Court and this Court by various decisions in deciding petitions filed u/s 5 of Limitation Act to condone the delay. Sufficient cause u/s 5 of Limitation Act is a question of fact and the court has to exercise its judicial discretion to meet the ends of justice and there is no strait-jacket formula. If it is brought to the notice of the court based on the available materials that a Petitioner before the court below had remained absent deliberately with a view to protract the proceeding, the court need not show any leniency or liberal approach in allowing the petition. Similarly no lethargic attitude of a person in filing petition to condone inordinate delay could be accepted as sufficient cause by the court. Condoning the delay liberally cannot be permitted to take away a legitimate accrued right of the other party or a third party. In fact substantial justice is paramount in deciding petition filed seeking condonation of delay. Divorced persons are entitled to marry again as per Section 15 of the Hindu Marriage Act 1955 which reads as follows:
15. Divorced persons when may marry again - When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
8. However, it cannot be disputed that a spouse who is successful of having a decree of divorce, as per procedure known to law, has to wait for the statutory period as stipulated in the Act, to have a valid marriage with another person. After the decree reached finality, the spouse who got the decree of divorce is at liberty to have a valid marriage with another person.
9. In such a circumstance, the accrued right of the third party cannot be ignored by liberally allowing inordinate delay, not satisfactorily explained u/s 5 of the Limitation Act. There is no proof or evidence available to show that the Petitioner herein had married another woman. Had it been true the Petitioner could have stated the name and other details of the woman with whom he solemnized the second marriage, with supporting documents. In the absence of the same, the bald averments that he had contracted another marriage cannot be accepted.
10. On the aforesaid circumstances, I am of the view that the court below has considered the circumstances and exercised its judicial discretion to meet the ends of justice and condone the delay by way of passing a conditional order so as to dispose the HMOP. on merits.
11. Therefore, I could find no illegality or material irregularity leading to miscarriage of justice, in the impugned order passed by the court below so as to warrant any interference by this Court by way of invoking the superintending power of this Court under Article 227 of the Constitution of India. Hence, the Revision is liable to be dismissed as no merits.
12. In the result, this Civil Revision Petition is dismissed. Consequently, connected M.P. is also dismissed. No order as to costs.
