TEJASHWARI LAL Vs. PANCHAM LAL

JUDGEMENT

(1.) MISCELLANEOUS Appeal No.464 of 1994 arises from an order refusing to set aside the ex parte decree in a matrimonial case. The appeal was admitted for hearing on 11.8.95. Civil Review No.173 of 1995 was filed for review of the said order dated 11.8.95 on the ground that the appeal having been filed beyond the period of limitation it should not have been admitted. In the meantime, the appellant had filed an application for condonation of delay on 23.8.95. The said application came up for hearing on the same day when an order was passed to the effect that it will be considered along with the hearing of the appeal. After the civil review came up for admission, counsel for the parties agreed that both the review petition and the application for condonation of delay be heard together. Accordingly, counsel for the parties made submissions on the review petition as well as the condonation application.

(2.) COMING to the facts relevant to the question of delay, the impugned order was passed by the Principal Judge, Family Court, on 24.9.94. The appeal against any order passed under the Family Court Act lies under section 19 of that Act. However, as stated, under bonafide advice of the counsel, the appeal was filed under Order 41 (sic for order 43) Rule 1(d) of the Civil Procedure Code, on 12.12.94. It is not in dispute that if appeal were maintainable under Order 43 Rule 1(d) of the Code, the period of limitation being 90 days under Article 116(a) of the Limitation Act, the appeal would have been within the period of limitation. However, the limitation for filing appeal under section 19 of the Family Court Act is 30 days. By adding 38 days which it took the appllant to obtain the certified copy, under section 12(2) of the Limitation Act, the period of 30 days would extend to 1.12.94. There, thus, was delay of 11 days in filing the present appeal.

(3.) SHRI Indu Shekhar Prasad Sinha, counsel appearing for the review -petitioner, very fairly stated that the power of condonation of delay is discretionary in nature. He, however, referred to the provisions of Order 41 Rule 3A of Civil Procedure Code and submitted that the application for condonation of delay having been filed after several months the delay should not be condoned. In support of the contention he placed reliance on the decision in State of Bihar V/s. Dhajadhari Rai, AIR 1985 Patna 187 : 1984 PLJR 957. Counsel submitted that the mistake of the counsel is not a good ground for condonation of delay. In this regard he placed reliance on G.Ramagowda V/s. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142. He further submitted that in the matter of condonation of delay the Court is required to see as to whether the explanation for the delay is reasonable and satisfactory and is not supposed to be guided by considerations of sympathy or equity. In this regard reliance was placed on P.K.Ramchandran V/s. State of Kerala & anr., (1997) 8 SCC 556. In course of hearing Shri Sinha also referred to another decision of this Court in Forbesganj Jagdish Mill Ltd. V/s. Kaloram, AIR 1985 Patna 212 : 1985. PLJR 504.