VINITA Vs. SANDEEP

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 11-12-2003 passed by 1st Additional District Judge, Dhar in Civil Suit No. 42-A/01, whereby divorce petition filed by the respondent on the ground of cruelty was allowed and a decree of divorce was passed, the present appeal has been filed.

(2.) SINCE the appeal is barred by 281 days, therefore, an application for condonation of delay is filed. The reason for condoning the delay assigned in the application is that after passing of the decree on 11-12-03 appellant approached her Counsel Mr. Suresh Raj Purohit, who was contesting the case on her behalf before the learned Court below. It was alleged that all the necessary documents were given by her to the learned Counsel, who assured that the appeal shall be filed before this Court. It is submitted that thereafter, appellant came to know on 28-10-04 in the proceedings of maintenance under Section 125 Cr. PC, that no appeal has been filed by the learned Counsel. It is further alleged that thereafter again after obtaining the certified copy of the judgment and decree the appeal was filed by the appellant on 16-12-04. It is submitted that delay in filing the appeal be condoned.

(3.) THIS application has been opposed by Mr. Sunil Jain, learned counsel for the respondent, alleging that all the allegations made in the application are false. It is submitted that in the proceedings filed by the respondent under section 125 Cr. PC appellant has given the statement on oath and was cross-examined. In her statement she has stated that she has not filed any appeal against the decree of divorce dated 11-12-03. It is submitted that her statement was recorded before the learned JMFC, Ratlam on 28-12-04. It is submitted that since appellant has submitted false affidavit, therefore, appellant deserves to be prosecuted and the application and also the appeal deserves to be dismissed. For this contention learned Counsel placed reliance on a decision Rajasthan High court in the matter of Mahesh Bhardwaj Vs. Smita Bhardwaj, Reported in AIR 1995 Rajasthan 47, wherein in a matrimonial case the appeal was filed with an application for condonation of delay on the ground that appellant came to know of order under appeal belatedly and from record it was found that appellant had knowledge of date fixed for order, it was held that plea of late knowledge is not tenable.