Vipan Kumari vs Garish Kumar Sharma

S.K. Gupta, J.—This application has been preferred seeking condonation of delay of 27 days in filing the appeal against the judgment and

decree dated 27.9.2002 passed by the District Judge, Rajouri in petition u/s 13 of the Hindu Marriage Act, 1980 (hereinafter for short referred to

as the Act, 1980), in invoking the provisions of Section 5 of the Limitation Act. It is urged that the applicant and her counsel were under the

impression that for filing the appeal, the period of limitation provided is 90 days, though, in fact, for appeal against a judgment and decree passed

under the Act, 1980, period of 30 days is provided for u/s 34(4) of the Act. The applicant further submitted that on account of financial

constraints, she could not contact the counsel for filing the appeal within the time and pleaded that delay was neither intentional nor deliberate, but

on account of the circumstances set out in the application, Despite opportunity, objections have not been filed by the non-applicant and offered to

advance arguments even without objections.

Mr. B.D. Nayar, learned counsel appearing for the non-applicant, submitted at the threshold that Section 5 of the Limitation Act does not apply

to the appeal filed u/s 34 of the Act, 1980. To support his contention, the learned counsel has placed reliance on the judgment of this Court by a

Division Bench in case entitled Pushpa Devi v. Nanak Singh 1982 KLJ 278. In the aforesaid case, Pushpa Devi lost her petition u/s 12 of the Act,

1980 in the Court of District Judge, Jammu and preferred an appeal before the Hon'ble High Court beyond 30 days, the period of limitation

provided for by Section 34 of the Act, 1980. She also moved an application u/s 5 of the Limitation Act seeking condonation of delay on variety of

grounds. When the application was being taken up for consideration, an objection was raised by the respondent that Section 5 of the Limitation

Act has no application to the appeal u/s 34 of the Act, 1980, which itself prescribed the period of limitation for appeals. It was further stated that

the application to such appeals was clearly excluded by Section 29 of the Limitation. The Court, after discussing the scope and applicability of

Article 156 of the Limitation Act and Section 29(2) read with Section 34 of the Act, 1980, which provides a period of 30 days for filing an appeal

against the order and decree passed under the Act, 1980, held as under:

Looked from any angle, therefore, Section 5 has no application to the present appeal and no exception can be taken to the view taken by one of

us (Anand J) in 1981 KLJ 427 (supra).

It, therefore, follows that unless Section 5 is specifically made applicable to any suit, appeal or application, it is special or local law prescribing

limitation for the same, it cannot apply to it by its own force. It is the view taken in catena of cases by the High Courts of the country. Mr. R.P.

Bakshi, learned counsel appearing for the applicant, has not been able to show any judgment of the High Court taking a contrary view. The net

deduction deducible from the above discussion, therefore, is that the period of limitation, as has been prescribed by Section 34(4) of the Act,

1980, is applicable and not the application of Section 5 of the Limitation Act, under which the delay is sought to be condoned.

In the facts and circumstances of the case, the application seeking condonation of delay is declined and the appeal shall also stand dismissed, as

barred by limitation in consequence thereof.