NARENDER KAUR Vs. PRITAM SINGH

JUDGEMENT

(1.) Appellant obtained a decree for judicial separation u/s 10 (1) of Hindu Marriage Act, 1955 on 30.9.77 from the Court of Additional D.J. She thereafter filed an application for permanent alimony u/s 25 of the Act and-also an application for litigation expenses and maintenance. The respondent filed his w/s and reply to the application. On 13.4.1977 the proceedings were transferred to another ADJ. Counsel for the parties appeared before the transferee court and the proceedings were adjourned for arguments presumably on the application for litigation expenses to 21.5.79. There was no appearance on behalf of the appellant on 21.5.1979 and therefore, her petition u/s 25 of the Act was-dismissed.

(2.) On 3.7,1979 the appellant made an application for restoration of the proceedings under the Act alleging that her counsel suffering from severe allergic symptoms, that before the date fixed her counsel had made an application to the Court that she would not be in a position to attend the case on 21.5 1979, that inspite of her counsel's application for adjournment her petition was dismissed for default, that her absence was not intentional but bonafide. The appellant appeared as her own witness. She has deposed that she engaged Mrs. Surendra Krishan as her counsel, that she came to Court on 29 5.79 and learnt that her application u/s 25 of the Act was dismissed for default on 215.79, that she tried to contact her counsel but as she was out of station she met the counsel after vacation on 2.7.79, that her counsel on 3.7.79 then filed the application for restoration. In cross examination she has stated that she was not aware of the date 21 5.79 and therefore, she did not appear in Court on that date. The respondent did not produce any evidence. The trial Court dismissed the application for restoration on the ground that it was barred by time and there was no sufficient cause Hence this first appeal.

(3.) From the record of proceedings it is clear that on 14.5.79 the proceedings were adjourned to 21.5 79 for arguments There is an application dt. 18 5.79 on the record of trial Court by Mrs. Surendra Krishnan Advocate for the appellant stating that she was suffering from 'urticaria allergy symptoms' for the last one month, that she was not in a position to attend the case on the next date i.e. 21.5,79. A request for adjournment was thus made. The application for restoration is signed by the counsel Mrs. Surendra Krishnan and is supported by affidavit. From the unrebutted statement of the appellant in support other application for restoration, it if clear that she came to know of the dismissal order dt. 21.5.79 on 29.5.79, that she tried to contact her counsel, Mrs. Surendra Krishnan but as her counsel was out of station on account of vacation she met her on 2.7.79 and the present application was filed on 3.7.79. There are two points for decision in this appeal, (1) whether there was sufficient cause for the absence of the appellant or her counsel on 21.5.79, and (2) whether there was sufficient cause for condonation of delay in filing the restoration application on 3.7.79. As regards first point there is an application on record dated 18.5.79 that the counsel for the appellant would not be in position to attend the Court on 21.5.79 on account of her illness. The counsel therefore, did not appear and the application u/s 25 of the Act was dismissed. The appellant had engaged a counsel to prosecute the proceedings and therefore, it was not Necessary for her to attend the day to day hearing in the case. The appellant expected her counsel to appear on 21.5.79 but her counsel could not appear on account of her own illness. Thus there was sufficient cause for the absence of the appellant's counsel on 21.5.79.