- (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. The appellant filed an appeal against the said judgment and order, dated 8-6-,1987 before this Court on 8-7-1987. However, this appeal was dismissed as withdrawn on 12-4-1988. Mean while, the appellant had moved an application on 30-3-1988 before the Family Court seeking to have the ex parte judgment and order set aside. An affidavit was filed in support of this application wherein it was stated that his younger sister Kumari Laxmi Devi fell seriously ill at the home town of the applicant at District Gonda on 5-6-1987 and on receiving intimation, he left for Gonda on 6-6-1987. Her condition deteriorated and he could not come back to be present in the Court on 8-6-1987. According to this affidavit, he had brought Laxmi Devi to Lucknow and admitted her in the Medical College, Lucknow where she dies on 23-6-1987. It was also stated that the applicant contacted Shri R. D. Pathak on whose advice the appeal was filed before the High Court. In the applica tion seeking condonation of delay under Section 5 of the Limitation Act no material fact was stated and the only thing mentioned was that the ex parte order merits to be set aside for the reasons and circumstances set out in the application and the affidavit filed in support thereof. To this application seeking setting aside of the ex-parte judgment and order, a counter affidavit was filed by the respondent Snit. Satya Devi wherein it was stated that Laxmi Devi was not the real younger sister of the appellant and was, in fact, his niece and that the natural father of Kumari Laxmi Devi and her other family members were available to look after her and to arrange for the treatment and that the real cause for non-appearance of the appellant before the Court on 8-6-1987 was that he was busy in connection with his second marriage which took place on 19-6-1987 and that the absence of the appellant on the date fixed was deliberate. It was also stated that no medical certificate or any other proof of the illness of Kumari Laxmi Devi and of her admission at the Medical College had been filed by the appellant. Copy of this affidavit was served on the applicant-appellant on 17-5-1988. No rejoinder to this counter affidavit was filed by the appellant and as such assertions made in the counter affidavit remained uncontroverted, namely, that Kuraari Laxmi Devi was not the real sister of the appellant as was claimed in the affidavit and further that the appellant had actually contracted second marriage on 19-6-1987 and his absence on the date fixed was accountable to his having remained busy in connection with his second marriage which was performed while his first wife, the respondent, was alive. There is yet another counter affidavit filed by the respondent dated 16-4-1988 wherein it was stated that the appellant avoided to attend the Court on 8-6-1987 and he was present at Lucknow. It was also stated that he was Munshi of different counsel in the High Court for the last ten years and he knew each and every thing about the case. No rejoinder to this affidavit also appears to have been filed. The two points made out from the counter-affidavit took away the very essence and bona fides underlying the affidavit filed in support of the application. The appellant was, admittedly, present at Lucknow on 6-6-1987 when he allowed the application for opportunity to be heard before any decision or order was rendered in the case. According to the affidavit, he received information sometime during" the night of 6th June, 1987 about the serious illness of his sister and on receiving such information, he went to Gonda. Correctness of this assertion was disputed in the counter-affidavit and it was stated that Kumari Laxmi Devi was not his real sister and her parents were there to look after the girl. This implied that there was no occasion for the appellant being urgently summoned to Gonda. The assertion made in the counter affidavit was not controverted. If this girl was really the real sister of the appellant and he had received some urgent call from Gonda, a joinder affidavit could be filed supported with some letter or tele grams or other material to show that he had actually received a call from Gonda. This having not been done, it has to be taken that Kumari Laxmi Devi even though she was ill at Gonda, was not his real sister and the appel lant had not received any urgent call for going to Gonda. The second important fact alleged in the counter affidavit was that the appellant had per-formed his second marriage on 19-6-1987 and he was actually busy in connection with that marriage and remained at Lucknow. This fact has also not been controverted meaning thereby that the appellant, admittedly, performed his second marriage while respondent, his first wife, was alive and this marriage was performed only 19-6-1987 and he could have been busy in connection with that marriage as alleged in the counter-affidavit.
(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. We have carefully considered the matter and are of the view that the order of the Family Court in rejecting the application for setting aside the ex parte decree cannot be said to be improper and unjustified.;