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2001 DIGILAW 204 (JK)

Manjeet Singh v. Manjeet Kour

2001-09-13

MUZAFFAR JAN

body2001
1. Revision Petition has been submitted to set aside the order passed by learned 3rd Addl. District Judge Srinagar dated: 20-04-2000. 2. It appears that petitioner filed a petition under section 10/13 of Hindu Marriage Act for judicial separation and divorce in the court of 3rd Addl. District Judge Srinagar. The present respondent was summoned but she absented, the proceedings were set exparte on 20-11-1995, resulting in exparte decree on 5th June 1997. Subsequently the respondent moved trial court for setting aside the exparte decree on 14-11-1996. The petition being time barred and application for condonation of delay was also submitted alongwith the petition which was considered by the trial court and allowed vide order dated: 20-04-2000. The validity of this order has been challenged in the present revision petition. 3. The respondent in the present revision petition is shown to have been represented by Mr. M. Ahmad but is not present today. Since the petition is pending for more than a year and involves purely a question of law, same is taken up for adjudication. Heard the learned counsel for petitioner. 4. Learned counsel for petitioner has submitted that the trial court did not have jurisdiction to condone the delay in the present proceedings, because the Hindu Marriage Act is a special Act and does not contain any provision for condoning the delay, therefore the revision petition be allowed and impugned order set aside. 5. Perused the record and considered the submissions of the leaned counsel for the petitioner. The law on the point has been well settled by Division Bench of this Court in 1982 KLJ 279. The relevant portion of judgment is reproduced as under:- " (4) On the plain language of Sub-section (2) once it is shown that the special or local law under which the suit, application or appeal is brought, provides for it a period of limitation different from the one provided by the first schedule, all provisions of the Limitation Act, except those contained in sections 3,4, 9 to 18 and 22 shall have no -application to such suit, application or appeal proprio vigore. Even the provisions contained in Sections 4 and 9 to 18 and 22 shall have no application in so far and to the extent to which they are expressly excluded by the special or local law under which the suit application or appeal is brought. Even the provisions contained in Sections 4 and 9 to 18 and 22 shall have no application in so far and to the extent to which they are expressly excluded by the special or local law under which the suit application or appeal is brought. With due respect to the learned Acting Chief Justice, there is no warrant for the proposition that Section 5 is independent of section 29 and has nothing to do with reckoning of the period of limitation. Period of limitation is prescribed by the first schedule. How that period is to be reckoned in different cases under different circumstances, has been provided by various sections of the Limitation Act, including Section 5, which too has the effect of extending the same in certain given cases on proof of sufficient cause. It is therefore idle to contend that this section has no bearing on the computation of period of limitation prescribed under the first schedule. Unless, therefore, Section 5 is specifically made applicable to any suit, appeal or application by the special or local law prescribing limitation for the same, it cannot apply to it by its own force. This view has been taken by almost all the courts in India and no court is shown to have taken a contrary view. (See Chheda lal Jain Vs. Officer Commanding Station Merut Cantonment, AIR 1941 Allahabad 207, M.K. Abu Bucker Vs. B. Moidu, 1957 And Pra. 473. The Canara Bank Ltd Vs. The Warden Insurance Co. Ltd, AIR 1953 Bombay 35, Rai Harindenath Chaudhuri Vs. Smt. Daulatmani Chaudhari, AIR 1958 Cal, 1956. Harbans Singh Vs. Karam Chand and another, AIR 1949 East Punjab 298, A.C. Arumaugham and others Vs. Manager, Jawahar Mills Ltd., AIR 1956 Madras 79, Ram Sagar Vs. Ram Nath and another AIR 1941 Oudh 276, and Surya Mohan Thakur Vs. The State of Bihar, AIR 1951 Patna 462). In all these cases the court declined to condone delay on ground that the period of limitation having been the prescribed by the special law. Section 29 (2) excluded the application of section 5, under which the delay was sought to be condoned." 6. The State of Bihar, AIR 1951 Patna 462). In all these cases the court declined to condone delay on ground that the period of limitation having been the prescribed by the special law. Section 29 (2) excluded the application of section 5, under which the delay was sought to be condoned." 6. In view of the well settled position of law it is manifestly clear that the provision of section 5 of Limitation Act have not been made applicable to the Hindu Marriage Act be set and there is no provision, permitting condonation of delay in petition under Hindu Marriage Act. The order to condone the delay is manifestly without jurisdiction. The trial court seems to have committed error by exercising jurisdiction to condone the delay. The impugned order on this account has to aside. The impugned order is set aside. Revision petition is allowed. Record be sent to the trial court