District : South 24 Parganas
In the Court of the Learned District
& Session Judge, at Alipore, South 24 Parganas.
Criminal
Appeal no. 198 of 2017
In
the matter of :
Shri
Indranil Biswas @ Raja, and another,
______Appellants
-
Versus –
Smt.
Rani Biswas and Others,
______Opposite Parties
Written Objection by the Opposite
Parties, on an application under Section 5 of the Limitation Act’ 1963, placed
by the appellants.
The
humble petition on behalf of the above named Opposite Parties, most
respectfully;
Sheweth as under :
1.
That the application under Section 5
of the Limitation Act’ 1963, is not maintainable in its present form, either in
terms of the facts or in the terms of the Law, thereof.
2.
That the present appeal under Section
29 of the Protection of Women from Domestic Violence Act’ 2005, has been
preferred by the appellants respondents, challenging the Order dated
25-08-2015, passed by the Learned 1st Court of the Judicial
Magistrate, at Alipore, South 24 Parganas, in ACM Case no. 2672 of 2014, only
on 15-09-2017, on and after expiry of 738 ( Seven Hundred and Thirty Eight Days
) only, and therefore placed an application under Section 5 of the Limitation
Act’ 1963, for condonation of such delay in preferring their appeal, and whereas
the same has been gone through by the opposite parties herein and do not found
any sufficient cause has ever been shown and day to day delay and the reasons
has not been described in the contents and purports of the said application
under Section 5 of the Limitation Act’ 1963, and thus liable to be dismissed in
terms of the Law.
3.
That the Opposite Parties state and
submit that the appellants has taken plea that their Learned Advocate mislead
them in the order under challenge, before the Learned Court below, at the first
and then at the second the appellant no.1, was suffering from Schizophrenia and
whereas on such two aspects plea thereof, the appellants seeks to get
condonation of delay for 738 ( Seven Hundred and Thirty Eight Days ) only, in
preferring their appeal, before the Learned Court, without any sufficient cause
and reasons so far, in detail descriptions thereof on day to day basis, and
thus the application under objection is liable to dismissed with cost thereof
in the interest of administration of justice.
4.
That the Opposite Parties state and
submit that the parameter to consider the application under Section 5 of the
Limitation Act’ 1963, is at first as of Sufficient Cause which prevent the
appellant in preferring the appeal before the Learned Court within the
prescribed period of Thirty days in terms of Section 29 of the Protection of
Women from Domestic Violence Act’ 2005, and such delay must be described on day
to day basis, thereof in terms of strict facts, so, far, which absolutely
absent on the part of the appellant, and therefore liable to be dismissed, in
the interest of administration of justice.
5.
That the Opposite Parties state and
submit that the xerox copies of the medical treatment papers as annexed in
annexure “B” of the application, as appeared are not sufficient to described as
sufficient one in considering at the length of period as of 738 ( Seven Hundred
and Thirty Eight Days ) only, and those are appeared as of manufactured and
suspicious one, and thus in view of such facts, the same cannot be considered
and thus the application under Section 5 of the Limitation Act’ 1963, is liable
to be dismissed inlimnie, in the interest of administration of justice.
6.
That the Opposite Parties state and
submit that the Protection of Women from Domestic Violence Act’ 2005, is a
Social Legislation, enacted in a view to provide expeditious relief to the
women, and whereas the present endavour of the appellants are straight denial
and refusal in making payments of monetary relief as directed in order under
challenge, and therefore nonpayment of monetary relief to the opposite parties
by the appellants are prejudice the rights as decided by the Learned Court below,
in terms of the facts, as well as in terms of the Law, thereof, and thus the
present application is liable to dismissed inlimnie, at once, in the interest
of administration of justice.
7.
That the Opposite Parties state and
submit that the appellants herein did not make any single payments, as directed
for in terms of the order under challenge in the present appeal, to the
opposite parties, and whereas the opposite party no.1, herein is the wife of
the appellant no.1, who does not have any sources of income and whereas the
opposite parties nos. 2, and 3, are the minor female child of the opposite
party no.1, and the appellant no.1, as of husband to the opposite party no.1,
and the father of the opposite parties no. 2, and 3, refused and neglect to
take care of them, and even after having the order and directions of the
Learned Court below, refused and disobey the direction and order of the Learned
Court below, with deliberate motive, and thereafter come up with unclean hand
in preferring the present appeal on an expiry of substantial period of time,
i.e. year after year, without any sufficient cause and cogent reasons, thereof and
thus the present application is liable to be dismissed inlimnie, and at once,
in the interest of administration of justice.
8.
That the Opposite Parties state and
submit that the appellants are not due diligent in preferring their appeal, and
deliberately avoiding due process of Law, as prescribed by the Learned Lower
Court below, viz., Order dated 28-05-2015, in ACM Case no. 2672 of 2014, and
therefore the present application under objection is liable to be dismissed inlimnnie
at once, in the interest of administration of justice.
9.
That the Opposite Parties state and
submit that the M. Execution Case no. 36 of 2017, arising out of ACM Case no.
2672 of 2014, is pending before the Learned 1st Court of Judicial
Magistrate, at Alipore, South 24 Parganas, as the said Execution proceeding is
for the demand of Rs. 4,84,000/- ( Rupees Four Lakhs and Eighty Four Thousand )
only, for the period September’ 2015 to June 2017, and the opposite parties are
not in receipt of their entitlement, till date, even after the appellants made
their appearances in such execution proceeding, and therefore the present
application under objection is liable to be dismissed inlimnnie at once, in the
interest of administration of justice.
10.
That the Opposite Parties state and
submit that the application under objection in its entirety and proprietary,
entitled to be dismissed inlimnnie at once, in the terms of the facts as well
as in terms of the Law, and more particularly, in the interest of administration
of justice.
11.
That unless the Learned Court
dismissed the application under objection, the opposite parties will highly
prejudice and suffer with irreparable loss and injury, thereof.
12.
Thant the balance of convenience and
in conveniences are in favour of the opposite parties, and the appellants will
not prejudice.
13.
That this application is made bonafide
and in the interest of administration of justice.
It is therefore prayed that your
Honour would graciously be pleased to allow this application and to dismissed
the application inlimnnie being the application under Section 5 of the
Limitation Act’ 1963, filed by the appellants, in the interest of
administration of justice, and or to pass such other necessary order or orders
and or further order or orders, as your Honour may deem, fit, and proper for
the end of justice.
And for this act of kindness, the
Petitioners, as in duty bound shall ever pray.
Verification
I, Smt. Rani Biswas, Wife of Shri
Indranil Biswas, being the opposite party no.1, do hereby verify this petition
and states that the statements made in the foregoing paragraphs of this
petition are true to the best of my knowledge and belief and I Sign this
verification on this _______the day of _______________2018, at Alipore Judges’
Court, Kolkata.
Smt. Rani Biswas
Identified by me,
Advocate.
Prepared in my Chamber,
Advocate
Date : _______________2018.
Place : Alipore Judges’ Court.
A F F I D A V I T
I, Smt. Rani Biswas, Wife of Shri
Indranil Biswas, aged about ________years, by faith Hindu, by Occupation House
Wife, presently compelled to residing at C/o. Suresh Gomes, Village –
Sukdevpur, Post Office – Ganipur, Shivrampur Road, Vivekananda Park, Police
Station – Maheshtala, Kolkata – 700 141, District – South 24 Parganas, do
hereby solemnly affirm and declare as follows :
1.
That I am the Opposite Party no.1, in
the present Criminal appeal, and the Opposite Parties nos. 2, and 3, are my
minor female children, whom I am representing as of Natural Gaurdian and being
mother of them.
2.
That the contents as stated in my objection
petition, are true to the best of my knowledge and belief and nothing is
concealed therein.
3.
That I am an Indian National.
DEPONENT
Identified by me,
Advocate.
Prepared in my Chamber,
Advocate.
Date : _______________2018.
Place : Alipore Judges’ Court.
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