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1999 DIGILAW 1218 (PAT)

Tejashwari Lal v. Pancham Lal

1999-11-18

INDU PRABHA SINGH, S.N.JHA

body1999
Judgment 1. Miscellaneous Appeal No.464 of 1994 arises from an order refusing to set aside the ex parte decree in a matrimonial case. The appeal was admitted for hearing on 11.8.95. Civil Review No.173 of 1995 was filed for review of the said order dated 11.8.95 on the ground that the appeal having been filed beyond the period of limitation it should not have been admitted. In the meantime, the appellant had filed an application for condonation of delay on 23.8.95. The said application came up for hearing on the same day when an order was passed to the effect that it will be considered along with the hearing of the appeal. After the civil review came up for admission, counsel for the parties agreed that both the review petition and the application for condonation of delay be heard together. Accordingly, counsel for the parties made submissions on the review petition as well as the condonation application. 2. Coming to the facts relevant to the question of delay, the impugned order was passed by the Principal Judge, Family Court, on 24.9.94. The appeal against any order passed under the Family Court Act lies under section 19 of that Act. However, as stated, under bonafide advice of the counsel, the appeal was filed under Order 41 (sic for order 43) Rule 1(d) of the Civil Procedure Code, on 12.12.94. It is not in dispute that if appeal were maintainable under Order 43 Rule 1(d) of the Code, the period of limitation being 90 days under Article 116(a) of the Limitation Act, the appeal would have been within the period of limitation. However, the limitation for filing appeal under section 19 of the Family Court Act is 30 days. By adding 38 days which it took the appllant to obtain the certified copy, under section 12(2) of the Limitation Act, the period of 30 days would extend to 1.12.94. There, thus, was delay of 11 days in filing the present appeal. 3. Shri Sunil Kumar, appearing for the appellant in support of the application for condonation of delay, submitted that the appellant acted under bona fide advice of the counsel and, therefore, should not be made to suffer. There, thus, was delay of 11 days in filing the present appeal. 3. Shri Sunil Kumar, appearing for the appellant in support of the application for condonation of delay, submitted that the appellant acted under bona fide advice of the counsel and, therefore, should not be made to suffer. He submitted that the object in prescribing the limitation is to ensure that the party acts with diligence and therefore while considering the (sic) the Court see that the rights of the party are not defeated, and if there is no wilful laches or negligence on his part, delay should be condoned. Reliance was placed on N.Balakrishnan v. M.Krishnamurthy, (1998)7 SCC 123 . Counsel also submitted that once appeal is admitted for hearing the question of limitation should not be reopened relied on a decision of this Court in Mosmat Ram Kali Kuer & ors. v. Indradeo Choudhary & anr., AIR 1985 Patna 148 : 1985 PLJR 129. 4. Shri Indu Shekhar Prasad Sinha, counsel appearing for the review-petitioner, very fairly stated that the power of condonation of delay is discretionary in nature. He, however, referred to the provisions of Order 41 Rule 3A of Civil Procedure Code and submitted that the application for condonation of delay having been filed after several months the delay should not be condoned. In support of the contention he placed reliance on the decision in State of Bihar v. Dhajadhari Rai, AIR 1985 Patna 187 : 1984 PLJR 957 . Counsel submitted that the mistake of the counsel is not a good ground for condonation of delay. In this regard he placed reliance on G.Ramagowda v. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142 . He further submitted that in the matter of condonation of delay the Court is required to see as to whether the explanation for the delay is reasonable and satisfactory and is not supposed to be guided by considerations of sympathy or equity. In this regard reliance was placed on P.K.Ramchandran v. State of Kerala & anr., (1997) 8 SCC 556. In course of hearing Shri Sinha also referred to another decision of this Court in Forbesganj Jagdish Mill Ltd. v. Kaloram, AIR 1985 Patna 212 : 1985 PLJR 504 . 5. In the facts of the case the objection of the review petitioner, if I may say so, is for objection sake. In course of hearing Shri Sinha also referred to another decision of this Court in Forbesganj Jagdish Mill Ltd. v. Kaloram, AIR 1985 Patna 212 : 1985 PLJR 504 . 5. In the facts of the case the objection of the review petitioner, if I may say so, is for objection sake. The fact that the appellant acted under wrong advice of the counsel is clear from the cause title of the appeal which continues to mention "Order 41 (sic for Order 43) Rule 1(d)" instead of section 19 of the Family Court Act. This shows that the appellant and/or her counsel was under the impression that the appeal was to be filed under Order 43 Rule 1(d) and not under section 19 of the Family Court Act. That being so, the period of limitation for filing appeal in the High Court being 90 days, and the appeal having been filed within that period, it cannot be said that there was any negligence or laches on the part of the appellant. 6. As regards the provisions of Order 41 Rule 3A of Civil Procedure Code, I am of the opinion that the provisions have to be construed as directory in nature. In contradistinction to section 3 of the Limitation Act, which enjoins upon the Court to dismiss the appeal or the revision, as the case may be, filed beyond period of limitation, so far as the application for condonation of delay is concerned, the law does not prescribe any period of limitation. Rule 3A of Order 41 CPC lays down a rule of procedure that such an application should be filed along with memorandum of appeal. That does not mean that where memorandum is not accompanied by application for condonation of delay, prayer for condonation cannot be made later. 7. In these premises, both on facts as well as on precedents, we have no difficulty in concluding that sufficient cause has been made out by the appellant for condonation of delay. The application (flag X) is accordingly allowed. The delay in filing the appeal is, thus, condoned. The review petition stands dismissed.