Swaran Kaur Vs. Gurdev Singh - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - it was further stated that she was ill-treated on account of failure to give birth to a male child. 4. the trial court observed that the husband has treated the wife well, but the wife wanted divorced on the receipt of rs. the trial court is not justified in observing that the husband has treated the appellant-wife well.orderadarsh kumar goel, j.1. this appeal has been preferred by the appellant-wife against the judgment and decree dated 9.3.1994 granted by sub-judge 1st class, balachaur, exercising the powers of district judge, hoshiarpur.2. the marriage between the parties took place about somewhere in the year 1984 and out of the wedlock, two daughters were born who were 8-1/2 and 4 years respectively at the time of judgment of trial court. the respondent-husband filed petition for restitution of conjugal rights on 13.5.1991 alleging that the appellant-wife was quarrelsome and does not want to live in joint family and in august, 1987 she left the matrimonial home and refused to return back.3. the appellant-wife appeared and contested the petition and stated that the husband filed petition for restitution as counter blast to her application under section 125 of the code of criminal procedure filed on 16.4.1991 and that she was turned out of the matrimonial home against her wishes and was not allowed to take her daughters with her. it was further stated that she was ill-treated on account of failure to give birth to a male child. the appellant-wife offered to live with the respondent-husband and stated that the real motive of the husband in seeking petition for restitution was to finally get the divorce on the basis of the decree for restitution of conjugal rights.4. the trial court observed that the husband has treated the wife well, but the wife wanted divorced on the receipt of rs. one lac as compensation. with these observations, the trial court granted decree for the grant of restitution of conjugal rights. aggrieved thereby the wife has preferred this appeal.5. the matter was referred to the lok-adalat under section 20 of the legal services authority act, 1987. finding that there was no possibility of compromise, the matter was referred back to this court for decision on merits.6. i have perused the record and considered the matter.7. i find that the approach of the trial court is erroneous. the statement of the wife regarding divorce is in the context of negotiation of divorce by mutual consent. her stand in the pleadings and evidence is that she was turned out for inability to give birth to a male child. while deciding the case on merits, her stand on divorce by mutual consent could not be taken into account. the trial court is not justified in observing that the husband has treated the appellant-wife well. there are allegations and counter allegations and there is no reason to accept husband's version duly rebutted by wife. i am, therefore, unable to agree with the approach adopted by the trial court. i, therefore, set aside the finding of the trial court that the appellant-wife had withdrawn from the society of the respondent-husband without reasonable cause.8. in view of the above, i allow this appeal, set aside the judgment and decree forrestitution of conjugal rights granted by the trial court and dismiss the petition filed by the respondent-husband. there is no order as to costs.

Judgment:
ORDER

Adarsh Kumar Goel, J.

1. This appeal has been preferred by the appellant-wife against the judgment and decree dated 9.3.1994 granted by Sub-Judge 1st Class, Balachaur, exercising the powers of District Judge, Hoshiarpur.

2. The marriage between the parties took place about somewhere in the year 1984 and out of the wedlock, two daughters were born who were 8-1/2 and 4 years respectively at the time of judgment of trial court. The respondent-husband filed petition for restitution of conjugal rights on 13.5.1991 alleging that the appellant-wife was quarrelsome and does not want to live in joint family and in August, 1987 she left the matrimonial home and refused to return back.

3. The appellant-wife appeared and contested the petition and stated that the husband filed petition for restitution as counter blast to her application under Section 125 of the Code of Criminal Procedure filed on 16.4.1991 and that she was turned out of the matrimonial home against her wishes and was not allowed to take her daughters with her. It was further stated that she was ill-treated on account of failure to give birth to a male child. The appellant-wife offered to live with the respondent-husband and stated that the real motive of the husband in seeking petition for restitution was to finally get the divorce on the basis of the decree for restitution of conjugal rights.

4. The trial Court observed that the husband has treated the wife well, but the wife wanted divorced on the receipt of Rs. One lac as compensation. With these observations, the trial Court granted decree for the grant of restitution of conjugal rights. Aggrieved thereby the wife has preferred this appeal.

5. The matter was referred to the Lok-Adalat under Section 20 of the Legal Services Authority Act, 1987. Finding that there was no possibility of compromise, the matter was referred back to this Court for decision on merits.

6. I have perused the record and considered the matter.

7. I find that the approach of the trial Court is erroneous. The statement of the wife regarding divorce is in the context of negotiation of divorce by mutual consent. Her stand in the pleadings and evidence is that she was turned out for inability to give birth to a male child. While deciding the case on merits, her stand on divorce by mutual consent could not be taken into account. The trial Court is not justified in observing that the husband has treated the appellant-wife well. There are allegations and counter allegations and there is no reason to accept husband's version duly rebutted by wife. I am, therefore, unable to agree with the approach adopted by the trial Court. I, therefore, set aside the finding of the trial Court that the appellant-wife had withdrawn from the society of the respondent-husband without reasonable cause.

8. In view of the above, I allow this appeal, set aside the judgment and decree forrestitution of conjugal rights granted by the trial Court and dismiss the petition filed by the respondent-husband. There is no order as to costs.