OM PRAKASH SINGH Vs. SATYA DEVI AND

JUDGEMENT

(1.) B. L. Loomba J. This appeal is directed against the order, dated November 2, 1988 passed by the Principal Judge Family Court, Lucknow whereby the appellant's application seeking setting aside of the judgment and order dated 8-6-1987 was rejected. The grounds of challenge raised in the memorandum of appeal are that the learned Family Court passed the order against the material facts on record and that there was sufficient material to explain the absence of the appellant on the date fixed in the case and the learned Court wrongly disbelieved the averments made in the appellant's application seeking the setting aside of the ex parte judgment and the application under Section 5 of the Limitation Act seeking condonation of delay.

(2.) WE have perused the record of the Family Court. The factual position appears like this. The application under Section 125 of the Code of Criminal Procedure seeking maintenance against the appellant was moved by the respon dent on 28-8-1986. Service against the appellant was considered sufficient but he did not put in appearance and the case was directed to be listed on 8-6-1987 for ex parte hearing. On 6-6-1987 the appellant moved an application stating that he may be heard before any judgment was delivered in the case. On this application learned Family Court directed it to be put up on the date fixed i. e. on 8-6-1987. The appellant was not present on that date and the case was, accordingly, decided ex parte on 8-6-1987.

(3.) IN the context of the affidavits filed by the parties, learned Family Court did not consider the ground of absence as sufficient. Another ground which weighed with the learned Family Court was that the appellant filed the application seeking setting aside of the ex parte decree much beyond the permis sible time. The applications was, admittedly, filed on 30-3-1988 i. e. after about nine months. IN the application seeking condonation of delay, all the material facts ought to have been set out which was not done and only thing stated therein was that the delay be condoned for the reasons given out in the appli cation and the supporting affidavit. If the appellant could not be present on the date fixed i. e. on 8th June, 1987, he ought to have move to the Family Court immediately on return to Lucknow. However, no application for setting aside the ex-pane decree was moved and instead was filed before this Court on 8-7-1987. According to the appellant, the appeal was filed on the advice given by his counsel Shri R. D. Pathak. However, no affidavit or letter from Shri R. D. Pathak was filed to say that it is he who had advised the appellant for filing the appeal rather than making an application to have the ex parte decree set aside before the Family Court. Learned Family Court has placed reliance on a decision of this Court in Devi Prasad v. State of U. P. , 1983 Lucknow Civil Decisions 385 in which it was held that the proof of a 'sufficient cause' is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. It was observed that bonafide advice given by a counsel after due care and attention may constitute sufficient cause for condonation of delay if acted upon by a party in good faith but it is not the law that the delay should invariably be condoned simply because it is asserted that it was caused on account of some wrong legal advice given by a counsel. The principle of law laid down in this case was that it was necessary to be made out that the counsel who is said to have given the advice must show that there was a bonafide mistake on his part and in spite of care and attention, he could not avoid the mistake which was committed by him. IN the absence of any material to show that the appellant did not file application to have the ex parte decree set aside within the permissible time and instead he filed the appeal on the advice of his counsel which was tendered on due care and attention, the ground set up seeking condonation of delay was held by the Family Court to be not sufficient.