VINITA SAXENA Vs. PANKAJ PANDIT

JUDGEMENT

(1.) This order will dispose of the application of the appellant under Section 5 of the Limitation Act for condonation of delay in filing the appeal. A few facts giving rise to this appeal are : The appellant had filed a petition under Section 13(1)(ia) (iii) of the Hindu Marriage Act for dissolution of marriage by a decree of dicorce. That petition was dismissed by the Matrimonial Court vide its judgment dated 19th March, 2001. The judgment of the Matrimonial Court has now been challenged by filing an appeal by the appellant on 5th April, 2002. There is a delay of 355 days in filing the appeal. This application is, therefore, filed for condonation of this delay.

(2.) The appellant was married to the respondent on 7th February, 1993. Alleging that the marriage was not consummated as the respondent was incapable of consummating the same and alleging cruelty, the appellant filed petition on or about June 30,1994 seeking dissolution of marriage by a decree of divorce. After filing the petition, the appellant pursued her studies and completed her MS (Structural Engineering) from Indian Institute of Technology, Delhi in 1995 and the following year she left for a Ph.D. programme to USA and stated to have completed her Ph.D. in December, 2000. The appellant got her degree in June, 2001 and is stated to be in USA thereafter. It was alleged in the application that she had continued her stay in USA on a practical training visa which allegedly imposes restrictions to travel outside USA. The impugned judgment dismissing the petition filed by the appellant was passed on 19th March, 2001. It is alleged that the appellant came to know of the order only by the end of March, 2001 and since she was in USA and was not in a position to come to India to take recourse to necessary legal proceedings, the appellant requested her aged father to seek further legal advice and take such further steps as may be deemed appropriate to protect her interest. The appellant's father allegedly contacted the lawyer who was conducting the trial and sought his advice. It is alleged that the lawyer told the father of the appellant that he would like to examine the matter and asked him to come after some days; that despite regular follow-up, the Counsel after almost about 2-3 months of waiting told the father of the appellant that he should discuss the matter with some other lawyer as he would not like to continue with the case. It is alleged that totally disappointed and dejected by such a response, the father of the appellant contacted her and apprised her of the facts. After seeking certain references, the appellant's father met Mr. Nageshwar Pandey, Advocate who took his own time to examine the matter and after about a month or so expressed his inability to take up the brief. After receiving negative response from Mr. Pandey, the father of the appellant contacted one Mr. Ashok Kumar Srivastav, Advocate who after an appropriate briefing advised that an appeal should be filed in the High Court of Delhi. It is alleged that Mr. Srivastav was requested to do the needful, however, after 3 to 4 weeks he also expressed his inability since he found it difficult to conduct matters in the High Court and was not in a position to depart from his normal routine practice. In this process, almost seven months were wasted but the appellant did not get any proper guidance or legal remedy. It is alleged that in the month of October/November, 2001 appellant's father met Mr. Ved Prakash Sharma, Advocate who after studying the matter immediately guided him to prefer an appeal and for this purpose he advised him to get service of a lawyer practising in the Delhi High Court. When requested to give certain references, he after about a week or so suggested a name. On meeting the said lawyer, the appellant's father was not very happy as he was not in a position to take up the matter immediately, though the urgency was appreciated. The appellant in the meantime contacted her father and allegedly been conscious of his old age and on account of her helplessness in coming to India to pursue the matter, the appellant's father contacted one Mr.Hariharan, Advocate in the monthof November/ December, 2001. He also advised the appellant's father to engage a Counsel to file appeal but he expressed his inability to handle the matter in the High Court of Delhi and also advised him to contact a lawyer practising in the Delhi High Court. It was only in February, 2002 that the appellant contacted her father and requested him to contact Mr. Sushil Dutt Salwan, Advocate who was made available the records on 25th February, 2002. The Counsel, it is submitted, thereafter took assistance of a medical Doctor and sought details about the respondent's illness and then drafted the appeal and filed the same in this Court.

(3.) On the above facts, it is averred in the application that the appellant was prevented by sufficient cause from filing the appeal in time and there was sufficient cause to condone the delay in filing the same.