HARI KISHAN Vs. GIAN KAUR

JUDGEMENT

(1.) This is an application under S. 5 of the Limitation Act dated 28th May, 1995 moved by Hari Kishan in the regular first appeal filed under S. 28 of the Hindu Marriage Act, 1955 (for short 'the Act') titled Hari Kishan v. Gian Kaur, and the appeal is directed against the judgment and decree dated 8th November, 1994 passed by the Court of Additional District Judge, Patiala, vide which the learned Additional District Judge dismissed the application under S. 13 of the Hindu Marriage Act filed by the applicant against his wife Smt. Gian Kaur, whose counter claim under S. 9 of the Act was also dismissed by the said Court vide the said judgment. Aggrieved by the said judgment and decree, the regular first appeal was filed on 25th March, 1995 after a period of 54 days of the expiry of the period of limitation and in order to condone this delay, the appellant Hari Kishan moved the present application with the averments that the appeal suffers from delay of 54 days and this delay had occurred because of the clerk of the counsel of the lower Court, who informed the applicant that the limitation for filing the appeal in the High Court was 90 days. The applicant avers that when he contacted the counsel in the High Court for filing the appeal he was informed that the prescribed period of limitation for filing the appeal is 30 days, which had already expired. With the above averments Shri Hari Kishan has prayed that his application under S. 5 of the Limitation Act be allowed and in support of his application the applicant has also filed his affidavit in which he has taken the same pleas, which have been incorporated in the application itself. At the first instance it may be mentioned that along with the application, the affidavit of the clerk, who allegedly had given the wrong advice, has not been attached, nor that of his counsel, who appeared on behalf of the applicant in the lower Court.

(2.) . Section 28 of the Act lays down as follows :

(3.) . Now question arises whether the delay of 54 days should be condoned in the present case or not. In dealing with an application for condoning delay in filing the appeal beyond the prescribed period, it is relevant to bear in mind two important considerations, namely;