1. Heard learned counsel for applicant and learned A.G.A. for the State. None has appeared on behalf of opposite party no. 2 despite service of notice.

2. This application under Section 482 Cr.P.C. has been preferred against order dated 15.04.2024, passed by learned Principal Judge, Family Court, Agra in Criminal Misc. Case No. 2917 of 2023 (Ajaykant Vs. Smt. Rakhi), under Section 126(2) Cr.P.C., whereby application filed by the applicant under Section 5 Limitation Act has been rejected.

3. It is submitted by learned counsel for the applicant that applicant is husband of opposite party no. 2, who has filed a case under Section 125 Cr.P.C., which was decided vide ex-parte judgment and order dated 12.04.2023. The applicant has no knowledge about the proceedings of said case and no notice was served upon the applicant. When applicant came to know about the said judgment, applicant has filed an application under Section 126(2) Cr.P.C. to recall the said ex-parte judgment, alongwith application under Section 5 of Limitation Act. The application under Section 126(2) Cr.P.C. was filed after five months of expiry of period of limitation. Referring to the facts of the matter, it was submitted that there was sufficient cause to condone the delay but the application filed by applicant under Section 5 Limitation Act for condonation of delay was rejected by the learned Principal Judge, Family Court, Agra vide impugned order dated 15.04.2024. Referring to the facts of the matter, it was submitted that impugned order is liable to be set aside.

4. Learned AGA has submitted that there is no illegality or perversity in the impugned order. There was no sufficient cause for condonation of delay in filing the application under section 126(2) CrPC.

5. I have considered rival submissions and perused the record.

6. In case of Maniben Devraj Shah Vs Municipal Corpn of Brihan Mumbai (2012) 5 SCC 157, Hon'ble Apex Court observed that law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. In Collector, Land Acquisition, Anantnag v. Mst. Katiji (supra), the Court made a significant departure from the earlier judgments and observed:

"The legislature has conferred the power to condone delay by enacting Section 5 the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

7. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court made following observations:

"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.’ 

8. It was observed that rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation.

9. Thus, what needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

10. Coming to the facts of the present case, it appears from record that the opposite party No. 2, who is wife of applicant, has filed a case seeking maintenance for herself and her minor child. On the notice issued by the Family Court, it was reported that applicant / husband could not meet at his address and his father has told that he is working in Delhi. Notice was also sent through registered post but there is nothing to show whether said registered letter was received by the applicant or not. On the basis of said report on notice and the registered letter, the Family Court held that service was sufficient and proceeded ex-parte vide order 15.09.2022 and ultimately ex-parte judgment dated 12.04.2023 was passed, awarding maintenance to the opposite party No. 2 and 3.

11. The applicant has filed application under section 126(2) CrPC to recall the said ex-parte judgment and order, along with application under section 5 Limitation Act for condonation of delay in filing the said application on 04.12.2023, whereas period of limitation was three months. The case of applicant is that he has no knowledge about the proceedings instituted by the opposite party No. 2. There is nothing to show that any notice was served personally upon the applicant. It appears that service upon the applicant was held sufficient on the basis that the registered letter sent to applicant did not return back. As per the applicant he has never received the registered letter. After perusing the impugned order it appears that learned Principal Judge, Family Court has adopted hyper technical approach while rejecting the application of the applicant. Applying the aforesaid position of law to the facts of the instant case, a case for condonation of delay subject to costs is made out. Considering all attending facts and circumstances of the case, it would be just and proper that the application under section 5 Limitation Act be allowed subject to costs of Rs. 7,000/-, so that the claimant, who is wife of applicant, may be compensated to some extent.

12. Thus, the impugned order dated 15.04.2024 is set aside and the application of the applicant under section 5 Limitation Act is allowed subject to costs of Rs. 7,000/- (Seven thousands). The applicant is directed to pay the said costs to opposite party no. 2 before the Family court or to deposit the same before the Family Court, within a period of two weeks from today. On payment of costs, the delay in filing the application under Section 126(2) Cr.P.C. would stand condoned and the application of the applicant filed under section 126(2) CrPC will be decided by the Family Court on merits in accordance with law. It is clarified that if the amount of said costs is not paid within the prescribed period, the impugned order shall be considered as effective and operative.

13. The application under Section 482 Cr.P.C. is disposed of in above terms.