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Cites 13 docs - [View All]
The Limitation Act, 1963
The Hindu Marriage Act, 1955
Section 28 in The Hindu Marriage Act, 1955
Section 5 in The Limitation Act, 1963
Section 5 in The Hindu Marriage Act, 1955
Citedby 1 docs
Bhundu Ram vs Amar Singh on 7 July, 2008

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Punjab-Haryana High Court
Hari Kishan vs Gian Kaur on 29 February, 1996
Equivalent citations: AIR 1996 P H 263, (1996) 113 PLR 360
Author: R L Anand
Bench: R Sethi, R A Sabina



ORDER
 

R. L. Anand, J.

1. This is an application under Section 5 of the Limitation Act dated 28th May, 1995 moved by Hari Kishan in the regular first appeal filed under Section 28 of the Hindu Marriage Act, 1955 (for short 'the Act') titled Hari Kishan v. Gian Kaur, and the appeal is directed against the judgment and decree dated 8th November, 1994 passed by the Court of Additional District Judge, Patiala, vide which the learned Additional District Judge dismissed the application under Section 13 of the Hindu Marriage Act filed by the applicant against his wife Smt. Gian Kaur, whose counter claim under Section 9 of the Act was also dismissed by the said Court vide the said judgment. Aggrieved by. the said judgment and decree, the regular first appeal was filed on 25th March, 1995 after a period of 54 days of the expiry of the period of limitation and in order to condone this delay, the appellant Hari Kishan moved the present application with the averments that the appeal suffers from delay of 54 days and this delay had occurred because of the clerk of the counsel of the lower Court, who informed the applicant that the limitation for filing the appeal in the High Court was 90 days. The applicant avers that when he contacted the counsel in the High Court for filing the appeal he was informed that the prescribed period of limitation for filing the appeal is 30 days, which had already expired. With the above averments Shri Hari Kishan has prayed that his application under Section 5 of the Limitation Act be allowed and in support of his application the applicant has also filed his affidavit in which he has taken the same pleas, which have been incorporated in the application itself. At the first instance it may be mentioned that along with the application, the affidavit of the clerk, who allegedly had given the wrong advice, has not been attached, nor that of his counsel, who appeared on behalf of the applicant in the lower Court.

2. Section 28 of the Act lays down as follows :

"28. Appeals from decrees and orders.-

(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order."

Perusal of sub-section (4) of Section 28 would show that the appeal against any decree or order passed under the provisions of the Hindu Marriage Act can be filed within 30 days, of course, after excluding the time obtained by the applicant for obtaining the certified copies of the decrees/ orders. For the decrees passed under Section 96 of the C. P. C,, of course, the limitation is 90 days, but the provisions of Section 28 of the Act are the special provisions which have the overriding effect on the general law of timitation. Section 5 of the Limitation Act, however, gives the right to the appellant/applicant to file an appeal beyond the limitation, provided he is in a position to show sufficient cause for not preferring the appeal or making the application within such period. Section 5 of the Limitation Act reads as follows:--

"5. Extension of prescribed period in certain cases.-

Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

A perusal of the above section would show that the words "Prescribed period" mean the period prescribed by Limitation Act itself and not by any other law.

3. Now question arises whether the delay of 54 days should be condoned in'the present case or not. In dealing with an pplication for condoning delay in filing the appeal beyond the prescribed period, it is relevant to bear in mind two important considerations, namely;

(i) The expiration of limitation for making appeal gives rise to a legal right in favour of the decree-holder to treat the decree as binding between the parties and this legal right should not be lightly disturbed; and

(ii) If sufficient cause for excusing the delay is shown, the applicant is not entitled as a matter of right to the condonation of delay but a discretion has been given to the Courts to condone delay and admit appeal.

To entitle a person to succeed in an application to excuse delay in presenting an appeal, he must satisfy the Court that he had sufficient cause for not presenting the appeal within the prescribed period. When the time for filing an appeal has once passed, a very valuable right is secured to the successful litigant, and the Court must, therefore, be fully satisfied of the justification of the grounds, on which it is sought to obtain extension of time for attacking the decree and thus perhaps depriving the successful litigant of the advantages which he had to obtain. The appellant is bound to show that there has been no negligence, inaction or want of bona fides before he can claim an extension of time. No. doubt while interpreting the words "sufficient cause" a litigant deserves to receive a liberal construction striking a just and equitable balance between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudica-

tion of his grievance on the merits of the appeal, for causes beyond his reasonable control, but the appellant must show that his cause was bona fide. An act which has been done in good faith should be considered as bona fide, but in the present case a delay of 54 days has not been properly explained. The case set up by the applicant is that there was a wrong advice on the part of the clerk of the counsel who appeared on his behalf in the trial Court. Strangely enough that a litigant like the present applicant, who has already appeared in six litigations in the various Courts against his wife, is banking upon the advice of the clerk of the counsel and he has not even cared to consult his lawyer nor he enquired about the limitation after the passing of the judgment. It is not every mistake of the counsel or his clerk, which entitles as a matter of right to a litigant to invoke the provisions of Section 5 of the Limitation Act. It is not sufficient for the appellant to show that he acted on the advice of the clerk of the counsel, but he must further show and satisfy this Court that the advice was given with due care and attention. In the present case even the clerk of the counsel has not cared to give any affidavit in support of the averments of the applicant, nor it is the case of the applicant that the clerk of the counsel at any point of time had consulted his lawyer for tendering the alleged advice, as pleaded in the application. As we have stated earlier, with the expiry of limitation a valuable right has accrued to the respondent and she should take into her head that after the expiry of the limitation under Section 28 of the Act, the litigation between her and her husband had ended for all times to come and that her husband might not be interested in pursuing the application under Section 13 of the Act. The delay of 54 days in the present case is inexcusable and from no angle it can be said that there was sufficient cause in favour of the applicant or that he acted in good faith with due care and caution by relying upon the alleged advice of the clerk of the counsel. The Hindu Marriage Act came into force in 1955 and 40 years have elapsed and by this time every lawyer of the country in the ordinary course should have the basic knowledge that every appeal against the decree and order passed under the provisions of the Hindu Marriage Act can be preferred within a period of 30 days from the date of the decree or order, of course after excluding the period spent in obtaining the certified copy of the order or. decree. As stated above, the judgment was pronounced on 8th November, 1994. The application for obtaining certified copy of the judgment was filed on 9-11-1994, and the certified copy was ready for delivery on 2-1-1995. The instant appeal was filed on 25-3-1995 and prima facie it is barred by limitation. The application under Section 5 of the Limitation Act is also vague in its particulars. There is no mention as to on which date the clerk of the counsel allegedly gave the advice to the applicant that the appeal could be filed in the High Court within 90 days of the decree.

4. Resultantly, we are of the considered view that this application is without any merit and the same is liable to be dismissed and we order accordingly.

5. The dismissal of the application under Section 5 of the Limitation Act has a direct bearing on the appeal itself, which is also hereby dismissed as barred by limitation.

6. There will be no order as to costs.

7. Order accordingly.