GAHC condensed 100-day appellate delay despite weak illness explanation. Court imposed 50% maintenance payment condition on applicant to prevent respondent wife/hardship and listed appeal for hearing only if paid.
Delay condoned subject to payment of 50% wife maintenance and full children maintenance within 4 weeks.
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Page No.# 1/3
GAHC010000012019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1/2019
1:PRADYUT NATH
S/O LATE GANESH CH. NATH,
RESIDENT OF BARPETA ROAD, WARD NO 3 PO AND PS BARPETA ROAD, DIST BARPETA ASSAM, 781315
VERSUS
1:SMT JHUMKI NATH AND 2 ORS D/O SRI NIRANJAN NATH
RESIDENT OF BARPETA ROAD, WARD NO 3 PO AND PS BARPETA ROAD, DIST BARPETA ASSAM, 781315
2:ANOUSHKA NATH D/O PRADYUT NATH MOTHER JHUMKI NATH RESIDENT OF BARPETA ROAD WARD NO 3 PO AND PS BARPETA ROAD DIST BARPETA ASSAM
781315 TO BE REPRESENTED BY HER MOTHER I.E OPP. PARTY NO. 1
3:PRAVANJAL NATH S/O PRADYUT NATH MOTHER JHUMKI NATH RESIDENT OF BARPETA ROAD WARD NO 3 PO AND PS BARPETA ROAD DIST BARPETA ASSAM
781315 TO BE REPRESENTED BY HER MOTHER I.E OPP. PARTY NO.
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : MR. P N GOSWAMI (R1-R3)
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Linked Case : /
1:PRADYUT NATH
VERSUS
1:SMT JHUMKI NATH AND 2 ORS
Advocate for the Petitioner : Advocate for the Respondent :
BEFORE
HON’BLE THE CHIEF JUSTICE MR. A. S. BOPANNA HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI
O R D E R
03.04.2019:
(A. S. Bopanna, CJ)
Heard Mr. M. U. Mondal, learned counsel for the applicant. Also heard Mr. K. P. Pathak, learned counsel for respondent Nos.1, 2 and 3.
The instant application is filed seeking condonation of delay of 100 (one hundred) days in filing the accompanying appeal.
Notice of the application was ordered to the respondents who are served and represented.
The reason indicated in the application seeking condonation of delay is that the applicant had filed an application seeking for copies of the deposition before the court below and pending receipt of the same, the applicant had also suffered certain illness.
Learned counsel for the respondents would point out that the reason as assigned is not justified inasmuch as the documents and prescriptions relied upon to substantiate his averment relating to the illness are in respect of the common illness which does not require any rest so as to prevent him from filing the appeal.
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Having taken note of the reasons and the objection thereto, at the outset, we find that the delay has not been satisfactorily explained. Even if that be the position, taking note of the fact that the applicant is before this Court assailing the judgment dated 12.04.2018 relating to the maintenance granted by the court below to the respondent and the children, a second look at the judgment would be necessary.
In that view, in the interest of justice though the delay is to be condoned and the appeal is to be taken up for consideration, in a matter of the present nature where the respondents, who are admittedly wife and children of the applicant, are seeking for maintenance, the hardship being faced by them also cannot be ignored. In that light, the condonation of the delay and the consideration of the appeal ultimately can only be made subject to terms. At this stage, we take note that the maintenance as ordered by the court below in respect of the children is not seriously opposed by the appellant. Hence, the maintenance as ordered in respect of the children shall be paid by the applicant and in respect of the first respondent wife, since it is contended that she is employed and the respondent herself had also indicated that though employed the income is insufficient, the appellant shall pay 50% of the amount as ordered by the court below. The arrear shall be calculated and on deducting the amount already paid in the execution proceeding, the remaining amount shall be paid in the pending execution proceeding within 4 (four) weeks from this date.
The delay is, therefore, condoned subject to the said condition and it is made clear that the appeal on being processed, shall be listed for “Admission” immediately on the expiry of 4 (four) weeks from this date. On the said date if the condition as imposed by this order is not complied, it is made clear that the benefit of the condonation of delay granted subject to condition, would cease to exist and in that view, the appeal would be liable to be dismissed on the said date.
In terms thereof, the application stands disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
2 issues framed by the court
Whether delay in filing appeal can be condoned given pending maintenance claims.
How to balance petitioner's illness with respondents' hardship over maintenance.
Pradyut Nath
Jhumki Nath
Anoushka Nath
Pravanjal Nath
A. S. Bopanna
Arup Kumar Goswami
As recorded by the court registry
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