Ram Chand vs Raj Rani

H.S. Brar, J.—An appeal has been filed against the order dated 22.11.1997 of the Additional Civil Judge (Senior Division), Fazilka, alongwith the appeal, an application u/s 5 of the Limitation Act has also been filed by the applicant-appellant as there was delay of 123 days in filing the appeal.

Notice was issued in the Misc. Application for condonation of delay to the respondent. Reply to the application was filed on behalf of the respondent-wife Raj Rani.

The ground for condonation of delay has been mentioned in para No. 2 of the application which is reproduced hereunder in verbatim :

"2. That virtually impugned order had been passed at the back of the petitioner. Counsel has given statement of his own. Further more, applicant went many times to enquire about the next date but farzi dates are always given by the clerk of Advocate and whenever petitioner has come to know that because of the statement, case has been dismissed. This fact has come to know from the Court concerned to the petitioner. So the appeal is within time from the date of knowledge or if this Hon''ble Court deems that there is delay of 123 days in filing the appeal then keeping in view the total circumstances of the case it may kindly be condoned."

The reply filed by the respondent-wife with regard to para No. 2 of the application is also reproduced hereunder as verbatim :

"2. That para No. 2 of the application is wrong and hence denied. No reason whatsoever has been given by the appellant for non-appearance on the date fixed. No date as to when the appellant came to know of the order from the Court concerned has been given. No affidavit of the Counsel or the clerk to support the contention has been filed. It is clear from the facts that the appellant was not vigilant in pursuing his case before the Trial Court. The delay of 123 days has not been explained and the application is liable to be dismissed."

The reply is supported by an affidavit filed by Raj Rani, wife of applicant-appellant.

Counsel for the applicant-appellant has submitted that on the basis of the grounds taken in the application for condonation of delay, the delay in filing the appeal may be condoned particularly in view of the judgment of the Full Bench of this Court rendered in R.F. A. No. 148 of 1993, Smt. Tara Wanti v. State of Haryana, decided on 5.7.1994. Counsel further insisted that this application should be allowed as it has never been heard of that an application for condonation of delay in matrimonial cases has ever been dismissed.

We are unable to agree with the contention of the Counsel for the applicant-appellant. After going through the application for condonation of delay and particularly para No. 2, we find that only a vague averment has been made for condonation of delay in filing the appeal. It has also not been mentioned in the application as to when the applicant applied for obtaining the copy of the order appealed against. No factual position has been stated as to when the applicant came to know about the passing of the order appealed against. Even this fact is not mentioned in the application as to whether the applicant at all applied for obtaining the certified copy of the order or not. The certified copy of the order is not even attached with the grounds of appeal. Rather the averments made in the application do not make any head and tail. It is as vague as any thing. The application does not mention any ground which we consider as a valid one for condonation of delay of 123 days in filing the appeal.

We need not advert to the finding given in Smt. Tara Wanti''s case (supra) cited by the Counsel for the applicant as it is not relevant to the facts or the case at all. After going through the contents of the application we have not understood, neither it has been brought to our notice now as to what was the ground, not to talk of a valid ground, if any, which could be the basis for the condonation of delay in filing the appeal.

The argument of the Counsel for the applicant that the delay of 123 days in filing the appeal should be condoned because the appeal arises out of the matrimonial cases is without any basis. Simply because the appeal has been filed against the order of the Additional Civil Judge (Senior Division), Fazilka exercising the jurisdiction of District Judge under Hindu Marriage Act dismissing the petition of the applicant-husband u/s 9 of the Hindu Marriage Act on the basis of the statement of the learned Counsel for the petitioner before him, is not a sufficient cause for condoning the delay of 123 days in filing the appeal.

After going through the application as well as the reply filed by the respondent-wife, we find that this application is frivolous and is liable to be dismissed as such. It is hereby dismissed with costs which are quantified at Rs. 500/-.