(Judgment) Court: abuse on spur of moment not valid ground for divorce

 View Judgment at bottom.

Oct 9, 2010

Making certain statements or using abusive language on the spur of the moment and expressing certain displeasure about the behaviour of elders by the spouse may not be characterised as cruelty, warranting ground for grant of divorce, the Supreme Court has held.

A Bench of Justice P. Sathasivam and Justice B.S. Chauhan said, “mere trivial irritations, quarrels, normal wear and tear of married life which happens in day-to-day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty.”

Writing the judgment, Justice Sathasivam said: “The married life should be assessed as a whole and a few isolated instances over a certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty.”

The Bench said, a Hindu marriage solemnised under the Hindu Marriage Act could be dissolved only on any of the grounds specified therein. It said: “Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in a different set of circumstances. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty.”

In the instant case, appellant Gurbux Singh, principal of a college was married to Harminder Kaur, working as librarian in a government institute in November 1997 and a male child was born to them in May 1999. Irked by certain remarks made by his wife against his parents, the appellant moved the trial court seeking divorce on the ground of ‘cruelty.' The trial court rejected the petition and the Punjab and Haryana High Court dismissed his appeal. The present appeal is directed against that order. 

The Bench said: “We are satisfied that on the basis of such instances, marriage cannot be dissolved. An isolated friction on some occasion like the festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.”

On the appellant's plea that there was irretrievable breakdown and that the marriage should be dissolved by the Supreme Court invoking its jurisdiction under Article 142 of the Constitution, the Bench said: “Though, on a rare occasion, this court has granted the extraordinary relief de hors to the grounds mentioned in Section 13 of the HM Act in view of the fact that the issue has been referred to a larger Bench about permissibility of such course at present, we are not inclined to accede to the request of the appellant. If there is any change of law or additional ground [irretrievable breakdown of marriage] included in Section 13 by the Act of Parliament, the appellant is free to avail the same at the appropriate time.”

REPORTABLE
              IN THE SUPREME COURT OF INDIA
               CIVIL APPELLATE JURISDICTION
                CIVIL APPEAL NO. 5010 OF 2007
Gurbux Singh                                               .... Appellant (s)
            Versus
Harminder Kaur                                             .... Respondent(s)
                             J U D G M E N T
P. Sathasivam, J.
1)     The   appellant,   a   Principal   in   ITI   College,   Sirhali,
Amritsar, has approached this Court against the judgment
and   final   order   dated   11.05.2007   of   the   High   Court   of
Punjab   &   Haryana   at   Chandigarh   in   FAO   No.   252-M   of
2006   whereby   the   learned   single   Judge   dismissed   the
appeal filed by him against the judgment and order dated
11.10.2006   of   the   Additional   District   Judge   (Ad   hoc),
Amritsar, dismissing the petition filed under Section 13 of
                                                                                 1
the   Hindu   Marriage   Act,   1955   (hereinafter   referred   to   as
"the   Act")   for   a   decree   of   divorce   against   the   respondent-
wife,   who   is   working   as   a   Librarian   in   Government
Institute   DIET   at   Verka,   Amritsar   on   the   ground   of
`cruelty'.     Both   the   courts   have   rejected   the   claim   of   the
appellant herein on the ground that he has failed to prove
`cruelty' sufficient for grant of a decree of divorce. 
The case of the Appellant
2)   (a)   On   23.11.1997,   the   appellant   got   married   with   the
respondent   at   Amritsar   according   to   Sikh   rites   and
customs.     Even   on   the   date   of   marriage,   the   respondent
had   been   working   as   a   Librarian   in   a   Government
Institute   DIET   at   Verka,   Amristar.     From   the   very
beginning,   the   respondent   expressed   her   dislike   towards
the   appellant   and   his   family   and   gradually   started
misbehaving   with   them.     She   started   exhibiting   short-
tempered   behaviour   and   treated   the   parents   of   the
appellant   with   cruelty   and   disrespect.     The   father   of   the
                                                                            2
appellant is aged about 80 years and his mother is more
than 75 years.  In the month of January 1998, on the first
Lohri  festival   after   their   marriage,   the   respondent   being
annoyed with the appellant on a trivial issue, abused his
mother in filthy language in the presence of their relatives
and   neighbours   causing   immense   pain   to   the   entire
family.     Since   then,   the   respondent   started   insisting  that
she cannot live with the parents of the appellant who are
mental   and   nuisance   in   her   life   and   pressed   upon   the
appellant to have a separate abode from his parents. 
(b)     On   15.05.1999,   a   male   child   was   born   out   of   the
wedlock.     Even   after   the   birth   of   the   child,   there   was   no
improvement   in   the   behaviour   of   the   respondent.     She
always   insisted   that   she   being   financially   independent   is
not in need of the appellant and his family. 
(c)    Just  five  days  before  the  third  birthday  of  their  child
i.e. on 10.05.2002, the respondent, without any justifiable
reason   left   the   matrimonial   home   leaving   the   child
                                                                             3
unattended   and   went   to   her   parents   house   and   staying
there since then.  The appellant having failed in his efforts
to   bring   back   the   respondent   to   the   matrimonial   home
and   in   view   of   the   consistent   cruelty   filed   HMA   Case   No.
19   of   2003   before   the   Addl.   District   Judge,   Amritsar,
praying for a decree of divorce under Section 13 of the Act.
The stand of the Respondent
3)     In   reply   to   the   divorce   petition,   while   denying   all   the
averments   made   by   the   appellant,   the   respondent   has
stated   that   the   appellant   is   a   greedy   person   and   not
satisfied with the dowry articles received in marriage.   He
always   misbehaved   and   maltreated   her   and   abused   on
several   occasions.     She   alleged   that   the   appellant   is   a
habitual   drinker   and   used   to   threaten   her   to   kill   with
poison.  She also alleged that the appellant pulled her hair
and   gave   merciless   beatings   in   the   presence   of   his
parents. 
                                                                              4
Decision of the District Court and High Court 
4)   By judgment dated 11.10.2006, the Additional District
Judge,   Amritsar,   after   analyzing   the   plea   of   both   the
parties,   oral   and   documentary   evidence   concluded   that
the   appellant-husband   failed   to   substantiate   the
allegations  of  `cruelty'  and  dismissed  his  divorce  petition.
Aggrieved by the same, the appellant approached the High
Court by filing FAO No. 252-M of 2006.  The learned single
Judge   of   the   High   Court,   by   the   impugned   order   dated
11.05.2007,   while   agreeing   with   the   conclusion   of   the
Additional   District   Judge   dismissed   the   appeal   filed   by
the   appellant.     Questioning   the   above   said   orders,   the
appellant   has   filed   the   present   appeal   by   way   of   special
leave petition. 
5)   Heard Mr. Vinay Kumar Garg, learned counsel for the
appellant   and   Mr.   Seeraj   Bagga,   learned   counsel   for   the
respondent.
                                                                         5
6)     The   only   question   for   consideration   in   this   appeal   is
whether   the   appellant-husband   has   made   out   a   case   for
divorce on the ground of `cruelty' by the respondent-wife.
7)  Section 13 of the Act specifies the grounds on which a
decree for divorce may be obtained by either party to the
marriage.     Though   in   the   divorce   petition   filed   before   the
Additional   District   Judge,   Amritsar   in   HMA   No.   19   of
2003, the appellant had sought divorce merely mentioning
Section 13 of the Act for dissolution of marriage by decree
of divorce, and did not specify the grounds on which he is
entitled to decree of divorce.  In the petition, the appellant
has   highlighted   only   one   aspect,   namely,   that   after   the
marriage,  in  the  month  of  January  1998,  on  first  festival
of  Lohri,   when   they   were   enjoying   the   festival,   the
respondent-wife   abused   his   mother   and   the   father   in  the
presence   of   relatives   and   neighbours.     In   para   6   of   the
petition, the appellant has alleged that:
                                                                           6
      ".....She  called  nuisance,  idiot  and mental  to the  parents  of
      the   petitioner   and   the   respondent   openly   said   that   she   did
      not   want   to   live   with   the   petitioner   if   he   live   with   his   old
      parents."
In para 10, the appellant has stated:
      "That   on   10th  May   of   2002,   the   respondent   left   her
      matrimonial   home   without   giving   any   information   to   any
      member and she also left her child in the matrimonial home
      this   shows   that   the   respondent   did   not   have   any   love   and
      affections towards petitioner and his family members.  She is
      living in her parental house for the last more than one year.
      Hence,   the   necessity   has   been   arisen   to   file   the   present
      petition....."
Except   the   above   allegations,   the   appellant   has   not
highlighted   any   other   instance(s)   about   cruelty   by   the
respondent.     Though   learned   counsel   for   the   appellant
attempted   to   argue   "desertion",   in   the   absence   of   any
plea/evidence and material, we disallowed him to pursue
the said point. 
8)  In the reply to the petition under Section 13 of the Act,
the   respondent   has   highlighted   her   stand   and   in   fact
denied all the allegations against her.   She also projected
her   case   that   the   custody   of   the   child   was   forcibly   taken
                                                                                               7
by the appellant when she returned from her matrimonial
home.     She   also   highlighted   that   the   appellant   used   to
force her to bring cash from her parents as he wanted to
purchase a car in the month of February 2000.  When she
refused   to   bring   cash,   she   was   mercilessly   beaten   by   the
appellant.   She also stated that in February 4, 2000, her
parents gave Rs. 50,000/- to the appellant and thereafter
the   appellant   agreed   to   keep   the   respondent   in   her
matrimonial home.   She also alleged that the appellant is
habitual of taking liquor and under influence of liquor, he
used to beat her.   She further alleged that the appellant's
maternal uncle's daughter used to interfere in their family
affairs. 
9)     Apart   from   the   above   pleadings,   both   parties   filed
statement in the form of an affidavit/petition and also let
in   evidence   reiterating   their   respective   pleas.              As
discussed   earlier,   the   only   instance   highlighted   by   the
appellant for divorce was that the respondent-wife abused
                                                                         8
his parents on the day of festival of  Lohri  in the presence
of relatives and neighbours. 
10)  In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511,
a   three-Judge   Bench   of   this   Court   while   considering
Section   13(1)(i-a)   of   the   Act   laid   down   certain   guidelines.
The   analysis   and   ultimate   conclusion   are   relevant   which
reads as under:-
      "98.  On   proper   analysis   and   scrutiny   of   the   judgments   of
      this   Court   and   other   courts,   we   have   come   to   the   definite
      conclusion   that   there   cannot   be   any   comprehensive
      definition of the concept of "mental cruelty" within which all
      kinds of cases of mental cruelty can be covered. No court in
      our   considered   view   should   even   attempt   to   give   a
      comprehensive definition of mental cruelty.
      99.  Human   mind   is   extremely   complex   and   human
      behaviour is equally complicated. Similarly human ingenuity
      has   no   bound,   therefore,   to   assimilate   the   entire   human
      behaviour   in   one   definition   is   almost   impossible.   What   is
      cruelty in one case may not amount to cruelty in other case.
      The   concept   of   cruelty   differs   from   person   to   person
      depending   upon   his   upbringing,   level   of   sensitivity,
      educational,   family   and   cultural   background,   financial
      position, social status, customs, traditions, religious beliefs,
      human values and their value system.
      100.  Apart   from  this,   the   concept  of  mental   cruelty   cannot
      remain static; it is bound to change with the passage of time,
      impact of modern culture through print and electronic media
      and value system, etc. etc. What may be mental cruelty now
      may not remain a mental cruelty after  a passage of time or
      vice   versa.   There   can   never   be   any   straitjacket   formula   or
      fixed   parameters   for   determining   mental   cruelty   in
                                                                                        9
matrimonial   matters.   The   prudent   and   appropriate   way   to
adjudicate   the   case   would   be   to   evaluate   it   on   its   peculiar
facts and circumstances while taking aforementioned factors
in consideration.
101.  No   uniform   standard   can   ever   be   laid   down   for
guidance,   yet   we   deem   it   appropriate   to   enumerate   some
instances   of   human   behaviour   which   may   be   relevant   in
dealing   with   the   cases   of   "mental   cruelty".   The   instances
indicated   in the  succeeding   paragraphs   are  only  illustrative
and not exhaustive:
(i)   On   consideration   of   complete   matrimonial   life   of   the
parties, acute mental pain, agony and suffering as would not
make   possible   for   the   parties   to   live   with   each   other   could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life
of the parties, it becomes abundantly clear that situation is
such that the wronged party cannot reasonably be asked to
put   up   with   such   conduct   and   continue   to   live   with   other
party.
(iii)   Mere   coldness   or   lack   of   affection   cannot   amount   to
cruelty, frequent rudeness of language, petulance of manner,
indifference   and   neglect   may   reach   such   a   degree   that   it
makes   the   married   life   for   the   other   spouse   absolutely
intolerable.
(iv)   Mental   cruelty   is   a   state   of   mind.   The   feeling   of   deep
anguish,   disappointment,   frustration   in   one   spouse   caused
by the  conduct of  other  for a  long time  may  lead  to  mental
cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.
(vi)   Sustained   unjustifiable   conduct   and   behaviour   of   one
spouse   actually   affecting   physical   and   mental   health   of   the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.
(vii)   Sustained   reprehensible   conduct,   studied   neglect,
indifference   or   total   departure   from   the   normal   standard   of
conjugal   kindness   causing   injury   to   mental   health   or
deriving sadistic pleasure can also amount to mental cruelty.
(viii)   The   conduct   must   be   much   more   than   jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day-to-day life would not
                                                                                      10
      be   adequate   for   grant   of   divorce   on   the   ground   of   mental
      cruelty.
      (x) The married life should be reviewed as a whole and a few
      isolated instances  over a period  of years will not amount to
      cruelty.   The   ill   conduct   must   be   persistent   for   a   fairly
      lengthy period, where the relationship has deteriorated to an
      extent   that   because   of   the   acts   and   behaviour   of   a   spouse,
      the wronged party finds it extremely difficult to live with the
      other party any longer, may amount to mental cruelty.
      (xi)   If   a   husband   submits   himself   for   an   operation   of
      sterilisation   without   medical   reasons   and   without   the
      consent   or   knowledge   of   his   wife   and   similarly,   if   the   wife
      undergoes vasectomy or abortion without medical reason or
      without  the consent or knowledge of her husband, such an
      act of the spouse may lead to mental cruelty.
      (xii)   Unilateral   decision   of   refusal   to   have   intercourse   for
      considerable   period   without   there   being   any   physical
      incapacity or valid reason may amount to mental cruelty.
      (xiii)   Unilateral   decision   of   either   husband   or   wife   after
      marriage not to have child from the marriage may amount to
      cruelty.
      (xiv)   Where   there   has   been   a   long   period   of   continuous
      separation,  it  may  fairly  be  concluded  that  the  matrimonial
      bond   is   beyond   repair.   The   marriage   becomes   a   fiction
      though supported by a legal tie. By refusing to sever that tie,
      the   law   in   such   cases,   does   not   serve   the   sanctity   of
      marriage;   on   the   contrary,   it   shows   scant   regard   for   the
      feelings and emotions of the parties. In such like situations,
      it may lead to mental cruelty."
11)   A Hindu marriage solemnized under the Act can only
be dissolved on any of the grounds specified therein.   We
have   already   pointed   out   that   in   the   petition   for
dissolution   of   marriage,   the   appellant   has   merely
mentioned   Section   13   of   the   Act   and   in   the   body   of   the
petition   he   highlighted   certain   instances   amounting   to
cruelty   by   the   respondent-wife.     Cruelty   has   not   been
                                                                                          11
defined   under   the   Act.     It   is   quite   possible   that   a
particular conduct may amount to cruelty in one case but
the same conduct necessarily may not amount to cruelty
due   to   change   of   various   factors,   in   different   set   of
circumstances.  Therefore, it is essential for the appellant,
who   claims   relief,   to   prove   that   a   particular/part   of
conduct or behaviour resulted in cruelty to him.   No prior
assumptions   can   be   made   in   such   matters.   Meaning
thereby   that   it   cannot   be   assumed   that   a   particular
conduct will, under all circumstances, amount to cruelty,
vis-`-vis the other party.  The aggrieved party has to make
a   specific   case   that   the   conduct   of   which   exception   is
taken amounts to cruelty.  It is true that even a single act
of   violence   which   is   of   grievous   and   inexcusable   nature
satisfies   the   test   of   cruelty.     Persistence   in   inordinate
sexual   demands   or   malpractices   by   either   spouse   can   be
cruelty   if   it   injures   the   other   spouse.     There   is   no   such
complaint by the appellant. In the case on hand, as stated
earlier,   the   appellant   has   projected   few   instances   in
                                                                           12
which,   according   to   him,   the   respondent   abused   his
parents.     We   have   verified   all   the   averments   in   the
petitions, reply statement, written submissions as well as
the evidence of both parties.   We are satisfied that on the
basis of such instances, marriage cannot be dissolved. 
12)    The married life should be assessed as a whole and a
few isolated instances over certain period will not amount
to cruelty.   The ill-conduct must be precedent for a fairly
lengthy   period   where   the   relationship   has   deteriorated   to
an   extent   that   because   of   the   acts   and   behaviour   of   a
spouse,   one   party   finds   it   extremely   difficult   to   live   with
the  other  party  no longer  may amount  to mental  cruelty.
Making certain statements on the spur of the moment and
expressing   certain   displeasure   about   the   behaviour   of
elders   may   not   be   characterized   as   cruelty.     Mere   trivial
irritations,  quarrels, normal wear and tear of married life
which happens in day to day life in all families would not
be adequate for grant of divorce on the ground of cruelty.
                                                                           13
Sustained   unjustifiable   and   reprehensible   conduct
affecting   physical   and   mental   health   of   the   other   spouse
may   lead   to   mental   cruelty.     Both   the   appellant   and
respondent   being   highly   qualified   persons,   the   appellant
being Principal in ITI College, the respondent working as a
Librarian   in   a   Government   Institute,   an   isolated   friction
on some occasion like festival of Lohri even in the presence
of   others   cannot   be   a   valid   ground   for   dissolving   the
marriage.
13)    Learned   counsel   appearing   for   the   appellant   by
drawing   our   attention   to   certain   allegations   made   by   the
respondent-wife in the reply to the petition under Section
13   of   the   Act   before   the   Addl.   District   Judge   submitted
that   by   considering   all   these   aspects   it   is   just   and
reasonable to consider and grant divorce on the ground of
cruelty.   In support of the same, he relied on the decision
of   this   Court   in  Vijaykumar   Ramchandra   Bhate  vs.
Neela Vijaykumar Bhate, (2003) 6 SCC 334.   No doubt,
                                                                       14
in that decision, this Court has held that allegations made
in   the   written   statement   or   suggested   in   the   course   of
examination   and   by   way   of   cross-examination   satisfying
the requirement of law has also to be taken note of while
considering the claim of either party.  In the case on hand,
it   is   true   that   the   respondent-wife   has   made   certain
allegations   against   her   husband-appellant.   However,
admittedly   based   on   the   same,   the   trial   Court   has   not
framed any issue and no evidence let in in support of the
same.     In   such   circumstances,   the   said   decision   is   not
helpful to our case.  Admittedly, no such issue was framed
by   the   trial   Court   or   any   point   determined   by   the   High
Court   based   on   such   averments   in   the   reply/written
statement.  Accordingly, we reject the said contention.
14)    As   regards   the   allegations   about   beating   her   child
and   not   feeding   him,   the   High   Court,   after   analyzing   the
entire materials, disbelieved the same.   It is also brought
to our notice that the appellant condoned the alleged act
                                                                        15
of   cruelty   as   he   wanted   to   bring   back   the   respondent   to
his   house.     As   such,   the   allegations   of   cruelty   do   not
appear to be truthful.   It is also proved that the appellant
is not interested to keep the respondent as his wife and he
wants divorce by any means.   As observed earlier, except
the grounds enumerated in Section 13, a Hindu marriage
solemnized   under   the   Act   cannot   be   dissolved   on   any
other grounds.
15)    Finally,   a   feeble   argument   was   made   that   both   the
appellant and respondent were living separately from 2002
and   it   would   be   impossible   for   their   re-union,   hence   this
Court   exercising   its   jurisdiction   under   Article   142   of   the
Constitution   their   marriage   may   be   dissolved   in   the
interest of both parties.   Though, on a rare occasion, this
Court   has   granted   the   extraordinary   relief  de   hors  to   the
grounds   mentioned   in   Section   13   in  view   of  the   fact  that
the   issue   has   been   referred   to   a   larger   Bench   about
permissibility   of   such   course   at   present,   we   are   not
                                                                         16
inclined to accede to the request of the appellant.  If there
is   any   change   of   law   or   additional   ground   included   in
Section 13 by the act of Parliament, the appellant is free to
avail the same at the appropriate time.
16)    In the light of the above discussion, we are unable to
accept   the   claim   of   the   appellant,   on   the   other   hand,   we
are in entire agreement with the conclusion arrived at by
the   Addl.   District   Judge   as   well   as   the   High   Court.
Consequently, the appeal fails and the same is dismissed
with no order as to costs.                
                                            ..........................................J.
                                          (P. SATHASIVAM)
                                           ..........................................J.
                                        (DR. B.S. CHAUHAN)
NEW DELHI;
OCTOBER 8, 2010.                      

(Judgement) SC: Direction to Indian Government to Curb 498a Misuse

Here is the judgement sent to the Indian Government on behalf of the SC of India.

http://judis.nic.in/supremecourt/imgs.aspx

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1512 OF 2010

(Arising out of SLP (Crl.) No.4684 of 2009)

Preeti Gupta & Another …Appellants

Versus

State of Jharkhand & Another ….Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.

3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.

4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.

5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.

6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.

7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.

8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offence could be made out against them.

9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:
“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”

10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.

11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.

12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.

13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their resettlement may not be impossible.

14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?

15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court.

Inherent power under section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

17. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

18. This court had occasion to examine the legal position in a large number of cases. In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.

20. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551, a three-Judge Bench of this court held as under:-
“…..In case the impugned order clearly brings out a situation which is an abuse of the
process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”

21. This court in Madhavrao Jiwajirao Scindia & Othersv. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:
“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

22. In State of Haryana & Others v. Bhajan Lal & Others1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:

“(1) Where the allegations made in the first information report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence

collected in support of the same do not disclose the commission of any offence and

make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigationis permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently

improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the

proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the

accused and with a view to spite him due to private and personal grudge.”

23. In G. Sagar Suri & Another v. State of UP & Others(2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.

24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-

“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant hasalleged and whether any offence is made out even if the allegations are accepted in toto.”

25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others(2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-

“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”

26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which

reads as under:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being

the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purposes of this section, ‘cruelty’ means:-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.


31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.



…….……………………..J.

(Dalveer Bhandari)

…….……………………..J.

(K.S. Radhakrishnan)

New Delhi;

August 13, 2010

Delay Must Be Condoned(SC Judgement)

IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2395 OF 2008

IMPROVEMENT TRUST, LUDHIANA .. APPELLANT(S)

VERSUS

UJAGAR SINGH & ORS. .. RESPONDENT(S)

WITH CIVIL APPEAL NOS.2397 OF 2008

O R D E R

1 Heard counsel on either side at length. Records perused.

2 Even though both sides had cited several decisions of this Court on the scope and application of Section 5 of the Limitation Act, but it is neither necessary nor required to deal with those cases in the peculiar facts and circumstances of this case.

3 Land belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement Trust, Ludhiana, for development scheme popularly known as “550 Acres Scheme”. Reference Court had passed the Award and fixed the amount of compensation at rupees 4,27,068.20 paise together with interest at the rate of 9% per annum from the date of the issuance of the notification in favour of Respondent Nos. 1 to 4. The appellant did not deposit the amount. Respondent Nos. 1 to 4 had to approach the Executing Court for recovery of the amount awarded. The property described as Khewat No.867 Khautani No.971 Khasra No.272 admeasuring 7K-18M entered in jamabandi for the year 1988-89 in village Jabaddi No.160 Tehsil and District Ludhiana was attached for realisation of the decretal amount. Later a notice under Order 21 Rule 66 of the Code of Civil Procedure (hereinafter shall be referred to as `C.P.C.’) was stated to have been issued to the appellant. However, despite service of notice, none appeared on behalf of the appellant /judgment debtor.

The property was put to an auction sale on 12/8/1992.

Respondent No. 5 herein, M/s. Jagan Singh and Company (hereinafter shall be referred to as `the Company’) offered Rs.22,65,000/-, and thus was declared as the highest bidder. Sale was knocked down in its favour,and later confirmed in its favour.

3 The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. Executing Court then framed issues,reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of judgment-debtor on 19/3/1993, 17/4/1993, 8/5/1993 and 29/5/1993. However, on the aforesaid dates none appeared on behalf of the appellant. Consequently,the evidence of appellant/judgment debtor was closed.

As a necessary consequence thereof appellant’s objections came to be dismissed in default due to nonappearance.

5 Mr. P.K. Jain, Advocate used to appear for the appellant Trust, but did not appear on the above mentioned dates.

The order-sheet dated 29/5/1993 reproduced in the impugned order passed by the learned Single Judge reflected the same. Case was posted for confirmation of sale on 5/6/1993, again there was no appearance and the sale was confirmed in favour of respondent No.5. It is reported pursuant thereto sale deed was executed in its favour through court. Out of the bid amount of Rs.22,65,000/-the awarded amount due to respondents 1 to 4 was released, and remaining is lying in deposit with the Executing Court.

The appellant thereafter filed miscellaneous appeal before the District Judge, Ludhiana, challenging the correctness propriety and validity of the orders passed on 29/5/1993 and 5/6/1993, made over to Additional District Judge, Ludhiana. Said appeal was barred by limitation by two months and few days, exact delay has not been reflected in any of the orders. But after going through the files it appears that delay was for about two months and few days. An application under Section 5 of the Limitation Act was filed to condone delay but was dismissed by the Appellate Court stating therein that no good and sufficient grounds were shown for condonation of delay.

Consequently the appeal was also dismissed.

14 Thereafter, appellant under some mistaken advice filed
execution second appeal in the High Court of Punjab and
Haryana at Chandigarh registered as Execution Second
Appeal No. 820 of 1994. On objections being raised
with regard to its maintainability, in the light of
the specific bar created under Section 104 of the CPC,
learned Single Judge converted the appeal into civil
revision and proceeded to decide as such.

15 Respondent No.5 contended that no error was committed by
the Executing Court in dismissing the appellant’s
application for setting aside the sale. Similarly thefirst Appellate Court also committed no error in
dismissing the Appellant’s appeal as no good and
sufficient cause were shown for condoning delay. The
objections raised by respondent No.5 found favour by the
learned Single Judge of the High Court and the
appeal/revision of the appellant was dismissed on
9/5/2003. In the light of the aforesaid orders the
objections preferred by appellant herein purportedly
filed under Order 21 Rule 90 of the CPC met with the
fate of dismissal. Appellant also filed an application
for review of the order dated 9/5/2003 passed by High
Court under Order 47 Rule 1 of the CPC but was also
dismissed on 8/7/2004, against which C.A. No.
2395/2008 has been filed before this Court. Since
parties are same and common issues arise for
consideration they are heard analogously and disposed of by a common order.

Learned senior counsel appearing for appellant Mr. Salil
Sagar with Mr. Arun K. Sinha, contended that appellant had
been contesting the matter in right earnest right from
the very beginning and had implicit faith and confidence
in his Advocate Mr. P.K. Jain, who had been appearing for
the appellant not only in this case but in several other
cases. According to him there was no reason to doubt that
he would not appear on various dates of hearing and then
would not even inform the appellant about the progress of
the case. In other words, it has been contended that
whatever best was possible to be done by the appellant
that had been done, therefore even though there has been
some delay, on account of non-communication of the passing
of the impugned order challenged in appeal, delay should
have been condoned and the matter should not have been
thrown at the threshold. To show its bonafides various
order-sheets passed by Trial Court and the Executing Court
have been brought to our notice. The envelop maintained by
Mr. P.K.Jain, Advocate, for keeping the brief, has been
filed to show that dates of hearing were mentioned therein.

1 On the other hand, Mr. Vijay Hansaria, learned senior
counsel appearing for respondent No.5, with his polite
yet usual vehemence submitted that list of dates as
filed by the Company would show and reveal the callous
and negligent attitude of the appellant or its
Advocate, therefore no indulgence should be shown to
it. It was contended that the indifferent attitude of
the appellant in prosecuting the matter had not come to
an end and Appellant had learnt no lessons from its previous defaults.

2 Even though appeal was dismissed by First Appellate Court
on the ground of delay, stood confirmed by the High
Court but even the Special Leave Petition was delayed
by 258 days in refiling there was further delay of 90
days. No doubt it is true that this Court after
considering the appellant’s application was pleased to
condone delay and leave was granted. But this has been
argued by Mr. Vijay Hansaria to show the conduct,
behaviour and attitude of the appellant in prosecuting the matter.

3 Be that as it may, we are of the opinion that the delay in
filing the first appeal before District Judge,
Ludhiana, for setting aside the sale has not been so
huge warranting its dismissal on such hypertechnical
ground. In fact, according to us, appellant had taken
all possible steps to prosecute the matter within time.
Had there been an intimation sent to the appellant by
Mr. P.K. Jain, its erstwhile Advocate, and if even
thereafter appellant had acted callously then we could
have understood the negligent attitude of the appellant
but that was not the case here. No sooner the
appellant came to know about the dismissal of its
objection filed before the Executing

1 Court, under Order 21 Rule 90 of the CPC it made
enquiries and filed the appeal. While considering the
application for condonation of delay no straight jacket
formula is prescribed to come to the conclusion if
sufficient and good grounds have been made out or not.
Each case has to be weighed from its facts and the
circumstances in which the party acts and behaves. From
the conduct behaviour and attitude of the appellant it
cannot be said that it had been absolutely callous and
negligent in prosecuting the matter. Even though Mr.
Vijay Hansaria appearing for the respondent No.5 has
argued the matter at length and tried his best to
persuade us to come to the conclusion that no
sufficient grounds made out to interfere with the
concurrent findings of facts but we are afraid, we are
not satisfied with the line of arguments so adopted by
the counsel for respondent No.5 and cannot subscribe to the same.

After all, justice can be done only when the matter is
fought on merits and in accordance with law rather than
to dispose it of on such technicalities and that too at
the threshold. Both sides had tried to argue the
matter on merits but we refrain ourselves from touching
the merits of the matter as that can best be done by
the Executing Court which had denied an opportunity to
the appellant to lead evidence and to prove the issues so formulated.

In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant’s objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are write large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.

Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties.

For the aforesaid reasons the impugned orders passed by Appellate Court, and order passed by the High Court,are hereby set aside and quashed. As a consequence,the matter stands remitted to the Executing Court for deciding the appellant’s application filed under Order 21 Rule 90 of CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and respondent No.5, both would appear before the Executing Court on 20/7/2010.

Being an old case an endeavour would be made by the Executing Court to take up the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no opinion, on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits.

4 We are conscious of the fact that respondent No.5 has been put to inconvenience and harassment as admittedly it had deposited a huge amount of Rs.22,65,000/- in the year 1992 but has not been able to get any fruits thereof till date. Therefore the appellant’s appeal is allowed subject to payment of Rs.50,000/- (Rupees fifty thousand) to respondent No.5 within three weeks hereof. Payment of cost is condition precedent, without which the appellant would not be allowed to prosecute its objections. The appeal therefore stands allowed to the aforesaid extent. The appellant to bear the cost through out. In the light of this order, other civil appeal No. 2397/2008 stands allowed to the aforesaid extent only.



(DEEPAK VERMA)

(K.S. RADHAKRISHNAN)

New Delhi,

June 9, 2010.