In a civil application for restoring a dismissed family court appeal, the Court condoned the delay caused by financial hardship subject to payment of costs and clearance of maintenance arrears.
Application for restoration of appeal allowed subject to payment of costs and clearance of maintenance arrears.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION.
CIVIL APPLICATION NO.238 OF 2007
IN
FAMILY COURT APPEAL NO.32 OF 2003
Pradeep Raghunath Penkar: Appellant.
versus
Shweta Pradeep Penkar & Anr.: Respondents.
Mr.R.K.Mendadkar for the appellant.
Mr.V.R.Shah for Respondent No.1
CORAM : J.N.PATEL &
A.A.SAYED, JJ.
DATED : OCTOBER 15, 2007.
P.C.
1.Heard.Learnedcounselfor the
applicants submits that the application for
restoration could not be made in time as the
financial condition of the applicant is not good
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and, therefore, delay may be condoned and the
order dated 4th September 2006 dismissing the
family court’s appeal be set aside and the matter
may be restored to file.
2.We need not reiterate the facts and
circumstances which led to the dismissal of the
appeal by this Court as it is a matter of record.
But one thing is apparent that the appellant is
not diligent in prosecuting the matter and
further there is no good and sufficient reason
set out in the application for condoning the
delay and restoring the appeal. In spite of
these adverse circumstances, in order to give a
fair opportunity to the applicant, We inclined to
condone the delay and restore the appeal but
subject to costs of Rs.10,000/- and further on
the condition that the applicant would clear all
the arrears of maintenance due and payable to the
child which was granted by the family court at
the rate of Rs.700/- per month on or before 30th
October 2007 and shall continue to pay
maintenance regularly with effect from 1.11.2007
by paying it on 10th of each month. In so far as
costs of Rs.10,000/- is concerned, that is to be
paid on or before 30th October 2007 and it shall
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be a condition precedent. We make it clear that
if the costs of Rs.10,000/- is not paid on or
before 30th October 2007, either by drawing a
cheque in favour of non-applicant/wife or by
depositing the same in this Court with intimation
to the wife, this application would stand
rejected without further reference to this Court.
In case, the applicant complies with the order,
appeal shall be listed for hearing in the week
commencing from 3rd December 2007. The
application stands disposed of accordingly.
[A.A.SAYED,J]
2 issues framed by the court
Whether the delay in filing the application for restoration can be condoned.
Whether the appeal regarding maintenance arrears can be restored to file subject to conditions.
Pradeep Raghunath Penkar
Shweta Pradeep Penkar
J.N.PATEL
A.A.SAYED
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court