IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT : ANAND

MISC. CIVIL APLICATION NO. 1517 OF 2023

Komal w/o Chiragkumar Devjibhai Vaghela

And D/O Rameshbhai Somabhai Talpada

….Applicant

Versus

Chiragkumar Devjibhai Vaghela

…
Respondents

AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT

I, Chiragkumar Vaghela, Son of Devjibhai Vaghela, Aged

__ years, residing/13, Karmnagari society, opp.

Vivekanand marg, PIJ Road, part 2, nadiad, diat. Kheda

387001 do hereby solemnly affirm on oath and state as

under:-

1. I am the respondent no.1 in the memo of

application. I have gone through the memo of

application filed by the applicant for transfer of case

and as I am fully conversant with the facts and

circumstances of the case and competent to depose,

I am filing this affidavit-in-reply at this stage, with a

view to oppose the grant of any relief in favour of the

applicants. I reserve my right to file additional

affidavit in case of necessity.

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2. At the outset, I deny each and every averment made

in the memo of application except in so far the same

are specifically admitted by me, to the extent, in this

affidavit.

3. At the outset, I say and submit that the applicant

has failed to give reasonable and sufficient cause for

transfer in filing the criminal revision application

before this Hon’ble Court. I say that the applicant

has remained negligent in initiating legal

proceedings and therefore, the law does not come to

the rescue of a litigant who is negligent and not

vigilant. Therefore, the delay of 178 days caused in

filing the revision application may not be condoned

by this Hon’ble Court in the interest of justice.

4. I say and submit that the only explanation given by

the applicant is that as the applicant did not have

financial means to engage private advocate, who

may take her case pro-bono, to challenge the

impugned order, some time elapsed. It is the case of

the applicant that after the advocate was engaged,

the applicant was asked to arrange the application,

reply and other documents, which were received by

applicant on 12.2.2019 and thereafter, the

applicant went to Ahmedabad and after necessary

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 instructions, the criminal revision application is

filed before this Hon’ble Court.

I say and submit that even as per the case of

the applicant herself,

i. The impugned order is pronounced on

6.8.2018 and she applied for certified copy of

judgment on 9.8.2018 which was received by

her on 14.8.2018;

ii. There is no sufficient, reasonable or plausible

explanation given by the applicant for the

delay from 14.8.2018 till 12.2.2019;

iii. There is no also no sufficient, reasonable or

plausible explanation given y the applicant for

the delay from 12.2.2019 till 1.3.2019 when

the present application was affirmed.

As per the settled law laid down by this

Hon’ble Court and Hon’ble Supreme Court, the

applicant has to explain each and every day’s delay,

which is not done in the present case.

So far as the contention of the applicant that

the applicant was facing financial problem, is no

ground for condonation of delay. Even otherwise,

the said contention is false and baseless in as

much, the applicant has filed number of

proceedings against the answering respondent viz.

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 i. Application for maintenance u/s. 125 of

Cr.P.C;

ii. Complaint under Domestic Violence Act and

consequent proceedings for maintenance/

alimony;

iii. Application for enhancement of maintenance,

which is subject matter of present proceedings;

iv. Application u/s. 24 of Hindu Marriage Act, for

interim alimony in divorce petition being

Family Suit No.49 of 2018;

It is highly impossible to believe that the

applicant has initiated all above proceedings

through advocate who will take applicant’s case

probono. In other words, the applicant is able to

arrange for fees and expenses required for initiation

of above proceedings. These facts clearly falsify the

case of applicant that she was facing financial

problems while initiating the present proceedings.

Thus, it is clear that the applicant is guilty of

making false statement on oath before this Hon’ble

Court and thereby misguide this Hon’ble Court.

Looking to overall conduct of applicant and other

surrounding factors, I pray this Hon’ble Court to

dismiss the present application.

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 I say and submit that from the facts stated by

the applicant in her application, it is undisputed

that the applicant was aware of passing of the

impugned order way back on 6.8.2018 and yet, she

has filed the present application after delay of 178

days. Thus, it is clear that the applicant has

throughout remained negligent, lethargic and there

is deliberate delay on the part of the applicant in

initiating the proceedings. Therefore also, the

present application for condonation of delay may

not be condoned and be dismissed.

5. I say and submit that this Hon’ble Court as well as

Hon’ble Apex Court has time and again laid down

certain principles for condonation of delay. The

delay should not be condoned in a case where there

is no sufficient and reasonable cause explained by

the litigant. I crave leave to reproduce some of the

judgments on the issue of condonation of delay

hereunder:-

“a) AIR 2010 SUPREME COURT 3043

Balwant Singh v. Jagdish Singh

(A) Civil P.C. (5 of 1908), O.22, R.9 -

Limitation Act (36 of 1963), S.5 -
ABATEMENT - LIMITATION - APPEAL -
Application for setting aside abatement -
Delay - Condonation - Conduct of
applicant - Ground raised that applicants
were staying away from their father
(deceased) - Had no knowledge of pending
appeal - Acquired knowledge only when

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 counsel informed them about hearing of
appeal - Ground that applicants were
staying away contrary to one taken in
application for bringing LRs on record -
Assertion that applicants had no
knowledge - Unbelievable as one applicant
was examined in trial - Application in fact
made much after applicants were
informed by counsel - Delay of over two
years not liable to be condoned. (Paras 6,
17)

(B) Limitation Act (36 of 1963), S.5 - Civil

P.C. (5 of 1908), O.22, R.9 - LIMITATION -
ABATEMENT - WORDS AND PHRASES -
Condonation of delay - Sufficient cause -
"Liberal approach" - Does not mean doing
injustice to opposite party - Application to
set aside abatement - Made belatedly -
Ground raised for condonation not
sufficient and also unbelievable - Delay
cannot be condoned - Provisions of O.22,
R.9 cannot be so construed so as to make
it redundant.

b) AIR 2004 SC 4158, Held Per incuriam.

Even if the term 'sufficient cause' has to
receive liberal construction, it must
squarely fall within the concept of
reasonable time and proper conduct of the
concerned party. The purpose of
introducing liberal construction normally is
to introduce the concept of
'reasonableness' as it is understood in its
general connotation. The law of limitation
is a substantive law and has definite
consequences on the right and obligation
of a party to arise. These principles should
be adhered to and applied appropriately
depending on the facts and circumstances
of a given case. Once a valuable right, has
accrued in favour of one party as a result
of the failure of the other party to explain
the delay by showing sufficient cause and
its own conduct, it will be unreasonable to
take away that right on the mere asking of
the applicant, particularly when the delay
is directly a result of negligence, default or
inaction of that party. Justice must be
done to both parties equally. Then alone
the ends of justice can be achieved. If a

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 party has been thoroughly negligent in
implementing its rights and remedies, it
will be equally unfair to deprive the other
party of a valuable right that has accrued
to it in law as a result of his acting
vigilantly. (Para 13)

Sometimes the Courts have taken a view

that delay should be condoned with a
liberal attitude, while on certain occasions
the Courts have taken a stricter view and
wherever the explanation was not
satisfactory, have dismissed the
application for condonation of delay. Thus
it is evident that is difficult to state any
straight jacket formula which can
uniformly be applied to all cases without
reference to the peculiar facts and
circumstances of a given case. It must be
kept in mind that whenever a law is
enacted by the legislature, it is intended to
be enforced in its proper perspective. It is
an equally settled principle of law that the
provisions of a statute, including every
word, have to be given full effect, keeping
the legislative intent in mind, in order to
ensure that the projected object is
achieved. In other words, no provisions
can be treated to have been enacted
purposelessly. Furthermore, it is also a
well settled canon of interpretative
jurisprudence that the Court should not
give such an interpretation to provisions
which would render the provision
ineffective or odious. Once the legislature
has enacted the provisions of O. 22, with
particular reference to Rule 9 and the
provisions of the Limitation Act are applied
to the entertainment of such an
application, all these provisions have to be
given their true and correct meaning and
must be applied wherever called for. To
say that the Court should take a very
liberal approach and interpret these
provision (Order 22, Rule 9 of the CPC and
Section 5 of the Limitation Act) in such a
manner and so liberally, irrespective of the
period of delay, it would amount to
practically rendering all these provisions
redundant and inoperative.

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 AIR 2004 SC 4158 Held Per incuriam.
(Para 14)
Delay is just one of the ingredients which
has to be considered by the Court. In
addition to this, Court must also take into
account the conduct of the parties, bona
fide reasons for condonation of delay and
whether such delay could easily be
avoided by the applicant acting with
normal care and caution. The statutory
provisions mandate that applications for
condonation of delay and applications
belatedly filed beyond the prescribed
period of limitation for bringing the legal
representatives on record, should be
rejected unless sufficient cause is shown
for condonation of delay. Thus, it is the
requirement of law that these applications
cannot be allowed as a matter of right and
even in a routine manner. (Para 16)

(C) Limitation Act (36 of 1963), S.5 -

LIMITATION - WORDS AND PHRASES -
Condonation of delay - Sufficient cause -
Means presence of legal and adequate
reasons.
The expression 'sufficient cause' implies
the presence of legal and adequate
reasons. The word 'sufficient' means
adequate enough, as much as may be
necessary to answer the purpose
intended. It embraces no more than that
which provides a lentitude which, when
done suffices to accomplish the purpose in
the light of existing circumstances and
when viewed from the reasonable
standard of practical and cautious men.
The sufficient cause should be such as it
would persuade the Court, in exercise of
its judicial discretion, to treat the delay as
an excusable one. These provisions give
the Courts enough power and discretion to
apply a law in a meaningful manner,
while assuring that the purpose of
enacting such a law does not stand
frustrated. (Para 14)”

In view of the above settled position of law also, the

present application for condonation of delay in filing

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 the Criminal Revision Application deserves to be

dismissed.

6. I say and submit that even otherwise, the applicant

does not have strong case on merits. On the

contrary, there is strong case on merits in favour of

answering respondent. The answering respondent is

likely to succeed in the main proceedings. As per

the admission made by the applicant, the answering

respondent is earning Rs. 8000/- per month. The

answering respondent is residing in a rented

premise and has to shoulder the responsibility of

his aged parents and therefore, the maintenance

awarded by the Courts below does not required to

be enhanced, as prayed for. As against this, the

applicant herself is working and earning good

income. I beg to rely upon the relevant documents

in respect of applicant’s employment at the time of

hearing of this application. Therefore also, when the

applicant has failed to make out any case on merits

in the main proceedings, the present application for

condonation of delay is required to be dismissed.

7. I now deal with the application parawise as under:-

7.1 With reference to para 1, I say and submit that

looking to the overall conduct of applicant of

stating incorrect facts on oath and trying to

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 misguide this Hon’ble Court, the main proceedings

i.e. Criminal Revision Application itself is liable to

be dismissed and hence, the present proceedings

may also be dismissed.

7.2 With reference to para 2, I do not admit the

contents thereof and deny the same. I say that the

contentions raised in this paragraph are false and

got-up. I say that even assuming without admitting

anything, the stand taken by the applicant is

neither plausible nor believable, as demonstrated

hereinabove. The explanation for condonation of

delay is neither reasonable nor sufficient. I reiterate

that the applicant has not given explanation for

each day’s delay. The contentions raised in this

paragraph on the contrary suggest that the

applicant has remained lethargic and negligent on

each occasion. Even after handing over papers to

the advocate, there is delay of about 2-3 weeks in

filing the proceedings.

7.3 With reference to para 3, 4 and 4(A), I do not admit

the contents thereof and deny the same. I deny that

the delay caused in filing the revision application is

genuine. I deny that the applicant was pursuing her

cause meticulously or never remained negligence. I

deny that the applicant did not have financial

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 means. I deny that the applicant has good case on

merits. I deny that no prejudice would be caused to

the respondent no.1.

7.4 With reference to para 5, I say and submit that in

view of what is stated hereinabove, none of the

reliefs as prayed in this application are capable of

being granted and the present application deserves

to be dismissed with heavy costs.

Solemnly affirmed at ______________ on this

_____ day of __________, 2019.

(DEPONENT)

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