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Anilkumar vs Shri on 30 March, 2010

Gujarat High Court
Anilkumar vs Shri on 30 March, 2010
Author: M.R. Shah,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CRA/32/2008	 3/ 3	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CIVIL
REVISION APPLICATION No. 32 of
2008 
=========================================================


 

ANILKUMAR
KANAIYALAL JAISWAL - Applicant(s)
 

Versus
 

HEENABEN
RAMESHCHANDRA JAISWAL - Opponent(s)
 

=========================================================
Appearance : 
MR
JV JAPEE for Applicant(s) : 1, 
MR BS PATEL for Opponent(s) :
1, 
MRS RANJAN B PATEL for Opponent(s) :
1, 
========================================================= 

 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE M.R. SHAH
		
	

 

 
 


 

Date
: 30/03/2010 

 

ORAL
ORDER

By
way of this revision application under Section 115 of Code of Civil
Procedure, petitioner has prayed to quash and set aside the impugned
order passed by learned Additional Sessions Judge, 4th
Fast Track Court, Modasa, dated 20th December, 2007
passed in CMA No.34 of 2007 by which, the learned appellate Court
dismissed the said application submitted by the petitioner which was
submitted to condone the delay of 9 years and 8 months in preferring
the appeal challenging the judgment and decree passed by learned
Civil Judge (S.D.), Himatnagar passed in HMP No.51 of 1994
dismissing the said HMP preferred by the petitioner-husband for
getting the divorce under Section 13 of Hindu Marriage Act.

Shri
Japee, learned advocate appearing on behalf of the petitioner has
submitted that after the dismissal of HMP No.51 of 1994 in the year
1998, respondent-wife filed a suit for restitution of conjugal
rights and there was a decree passed by learned trial Court against
the petitioner and in favour of respondent-wife in the year 1998 and
therefore, petitioner was of the opinion that in view of the decree
passed in favour of the wife for restitution of conjugal rights, she
will stay with the petitioner and therefore, petitioner did not
challenge the judgment and decree passed by the learned trial Court
passed in HMP No.51 of 1994 dismissing the suit preferred by the
petitioner for getting the divorce under Section 13 of Hindu
Marriage Act. Therefore, it is submitted that in the aforesaid facts
and circumstances of the case, learned appellate Court ought to have
condoned the delay in preferring the appeal.

Shri
Chirag Patel, learned advocate appearing on behalf of
respondent-wife has submitted that the impugned order passed by the
learned appellate Court in not condoning the delay of 9 years and 8
months in preferring the appeal is just and proper. It is submitted
that on the ground stated in the application to condone the delay,
the learned appellate Court has rightly rejected the application and
not condoning the delay of 9 years and 8 months by further observing
that except the say of the husband that he is ready and willing to
reside with the wife, Nothing is on record that any attempts were
made by the husband to reside and stay with the wife. Therefore, it
is requested to dismiss the present revision application.

Having
heard the learned advocates appearing for the respective parties and
considering the impugned order passed by the learned appellate Court
in not condoning the delay of 9 years and 8 months in preferring the
appeal, it cannot be said that learned appellate Court has committed
any error and/or illegality in not condoning the huge delay of 9
years and 8 months in preferring the appeal. Grounds stated by the
petitioner in the application to condone the delay of 9 years and 8
months have been considered by
the learned appellate Court on valid reasons. As rightly
observed by the learned appellate Court except the bare words and
say of the husband that he is ready to stay and reside with the
wife. Nothing is on record that any attempts were made by the
petitioner-husband to stay / reside with the wife. Therefore,
grounds stated by the applicant in the application for condonation
of delay has not been accepted by the learned appellate Court.

In
view of the above and considering the reasons stated in the impugned
order, no case is made out to interfere with the impugned order
passed by the learned appellate Court in not condoning the delay of
9 years and 8 months. Under the circumstances, present revision
application deserves to be dismissed and is accordingly dismissed.
The amount of Rs.5,000/- (Rupees Five Thousand Only) deposited by
the petitioner is permitted to be withdrawn by the respondent-wife.
Registry is directed to pay the said amount to the respondent-wife
by account payee cheque.

(M.R.SHAH,
J.)

(ashish)

   

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