PRITHVI RAJ Vs. SMT. KAMAL KANTA

JUDGEMENT

(1.) PRITHVI Raj has preferred this appeal against the order of the Additional District Judge, Hoshiarpur dismissing his petition filed under Section 13 of the Hindu Marriage Act seeking divorce from his wife Smt. Kamal Kanta. Admittedly, this appeal was filed ten days after the expiry of limitation Along with the memo of Appeal, no application for condonation thereof was made. It was in consequence of the objection raised by the Registry that the present application under Section 5 of the Limitation Act was filed. The condonation of delay in filing the appeal has been strongly opposed on behalf of Kamal Kama. Relying on Om Sorup v. Gur Narayan, (1965) 67 P.L.R. 634, learned Counsel for Kamal Kanta (Respondent) contended that Prithvi Raj (Appellant) is required to explain each day's delay. In this regard, the following averments made in the application deserve consideration:

(2.) FOR appreciating the next objection raised by the learned Counsel for Kamal Kanta, it may be mentioned here that the appeal was filed on 15th January, 1579. On the following 19th, the Registrar raised an objection that notwithstanding the same being barred by time, there is no application for condonation of delay. Although the direction was to refile the appeal within a week, yet it was actually refiled on 19th April, 1979. Learned Counsel for Prithvi Raj Mr. B. R. Kapur, explained that he being a practising lawyer of Delhi, did not come to Chandigarh before 19th April 1977, when he came to Chandigarh on the said date, the appeal was returned to him and he complied with the direction The explanation offered by the learned Counsel cannot be held to be tenable because, as pointed out by the learned Counsel for Kamal Kanta, alongwith Mr. B.R. Kapur, two other Advocates practising in Chandigarh were engaged by Prithvi Raj vide power of attorney annexed with the Memo of Appeal. Besides, urged the learned Counsel for Kamal Kanta, that if Mr. B. R. Kapur came to know of the objection raised by the Registry of this Court that the appeal was barred by time on 19th April, 1979, on his visit to Chandigarh, one fails to see how the affidavit of Prithvi Raj was not attested in Delhi on 18th April, 1979. This is the first affidavit supporting the application under consideration allegedly filed on 19th April, 1979. There is thus merit in the objection of the learned Counsel for Kamal Kanta that Prithvi Raj knew full well the said objection before the filing of the present application There was a long delay of about three months in applying for condoning the delay. Within this period, urged the learned Counsel, Prithvi Raj had ample time to make out any excuse.