Bishwanath Pandey Vs. Anjana Devi - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 8. trial court dismissed the suit holding that husband miserably failed to prove that his wife had relations with other males. 2 and 3. he also failed to prove that his wife had gone to her parents' house in the year 1994 and thereafter she never returned to him. 9. in our opinion, the appellant, who had filed the suit for judicial separation miserably failed to prove allegation of cruelty and desertion against his wife.gurusharan sharma, j.1. in march, 1980, bishwanath pandey, the appellant was married with the respondent, anjana devi. they lived together and cohabited as husband and wife at sindri, where the husband was working as pump driver in public health engineering department, sindri bit.2. according to husband, his wife left her quarter on 2.1.1992 and went to her father's house without informing him and without any reasonable and probable cause and without his consent and thereafter deserted him for all intents and purposes for more than two years.3. the husband filed a suit under section 10 of the hindu marriage act, 1955 against the wife for a decree of judicial separation. it was claimed that many times he had gone to his father-in-law to bring his wife but she persistently refused to come and reside with him. it was alleged that she was living with some persons of questionable character which caused mental tension to him and it was no longer possible to live with her any more. the wife treated him with mental cruelty and wilfully neglected him.4. the wife appeared and filed written statement stating, inter alia, that she never left quarter of her husband and went to her father's house. she was still living with her husband at sindri. she never treated her husband with any cruelty or denied to live with him. there was no apprehension in her mind that it was harmful or injurious for her to live with her husband.5. the husband examined two witnesses, including himself as a.w. 1 and stated that after marriage he along with his wife lived together for 13 years at sindri. in january, 1993, she had gone to her parents and returned in 1994 and lived with him for 4-5 months and then again went to her parents. she was living with other males. she had no issue. anjana devi is his second wife. his first wife died without any issue after 4 years of marriage. he was unable to name any male with whom his wife was said to be living.6. a.w. 2 was unable to say as to whether wife left husband and started living separately or husband forcibly turned out her from his quarter.7. on the other hand, the wife examined herself as o.p. 1 claimed that she was still living in the quarter of her husband separately. her husband was not willing to keep her as she had not delivered any child.8. trial court dismissed the suit holding that husband miserably failed to prove that his wife had relations with other males. his hostile statement in this regard was not corroborated by a.ws. 2 and 3. he also failed to prove that his wife had gone to her parents' house in the year 1994 and thereafter she never returned to him. on the other hand, wife stated that she was still separately living in one room of the quarter of her husband at sindri.9. in our opinion, the appellant, who had filed the suit for judicial separation miserably failed to prove allegation of cruelty and desertion against his wife.10. the wife in her deposition as o.p. 1 also stated that once her husband had beaten her and had stopped her meals and as such she had to file a criminal case against him at the police station, to us it appears that it was a temporary phase and the wife had no reservation to live with her husband and in fact she was living in his quarter.11. we find no reason to interfere with the impugned judgment and decree. there is no merit in this appeal. it is, accordingly, dismissed, but without costs.