Skip to content


Surjit Kaur Vs. Tarsem Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 41-M of 1977 and Civil Miscellaneous Nos. 1563-C-II and 2099-C-II of 1977
Judge
Reported in(1977)79PLR667
ActsLimitation Act - Sections 5; Hindu Marriage Act, 1955 - Sections 23, 23(4), 28 and 28(4); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 3A
AppellantSurjit Kaur
RespondentTarsem Singh
Excerpt:
.....of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind..........appeal was made on 29-6-1977, but the deposit of rs. 100/-was still not made. from the copy of the decree filed, it is clear that the application for obtaining the copy had been made on 30-5-1977, which was ready on 2-6-1977, but its delivery was taken by the appellant as let as 8-6-1977. it is not disputed that unless the delay is condoned, the appeal even as originally filed along with certified copy of the judgment was time--barred, and certified copy of the decree was still filed quite late.3. in the application under s. 5 of the limitation act, prayer for condonation of delay has been made on two grounds, firstly, that under s. 23(4) of the hindu marriage act, 1955, as amended (hereinafter to be called the act) the appellant was entitled to a copy of the decree free of cost and as.....
Judgment:

Harbans Lal, J.

1. The present appeal against the decree of divorce by dissolution of marriage, dated 1-3-1977, was filed in the first instance on 20-5-1977. At that time only certified copy of the judgment was annexed with the memo of appeal. Along with the appeal an application (C. M. No. 1563--C--II of 1977) under S. 5 of the Limitation Act for condonation of delay was also submitted. The appeal was admitted on 28-7-1977. However, no order was passed on the said application. However, no order was passed on the said application. The present application (C. M. No. 2099--C--II of 1977) was filed on behalf of the respondent in which it was prayed that under O. 41, R. 3A, Civil P. C., it was mandatory for the Court to decide the question of limitation before admitting the appeal, and that as the appeal was patently time--barred, the order regarding admission of the appeal be reviewed and the application under S. 5 of the Limitation Act be decided in the first instance.

2. The impugned judgment was passed on 1-3-1977. Copy of the same was applied for by the appellant on the last day of limitation, that is, on 1-4-1977. Though the copy was ready on 16-4-1977, but the same was obtained by the appellant seven days after, that is, on 23-4-1977. As the appeal was filed on 20-5-1977 along with certified copy of the judgment, the same was apparently time--barred after excluding the period spent in obtaining the copy of the judgment. Consequently along with the appeal, an application for condonation of delay under S. 5 of the Limitation Act was also filed. As the appeal was not accompanied by a certified copy of the decree, and Rs. 100/-to meet the typing charges had also not been deposited along with the appeal as required by the rules, the appeal was returned to meet the objection. The learned counsel for the appellant, however, struck to his contention that it was neither necessary to file the certified copy of the decree with the appeal, nor was it incumbent on the appellant to deposit Rs. 100/-, and the appeal was re--filed on 27-5-1977. The same having been returned a second time with a similar objection, the learned counsel persisted in his stand and re--filed the appeal on 15-6-1977. Finally, the necessary compliance regarding annexing the certified copy of the decree with the appeal was made on 29-6-1977, but the deposit of Rs. 100/-was still not made. From the copy of the decree filed, it is clear that the application for obtaining the copy had been made on 30-5-1977, which was ready on 2-6-1977, but its delivery was taken by the appellant as let as 8-6-1977. It is not disputed that unless the delay is condoned, the appeal even as originally filed along with certified copy of the judgment was time--barred, and certified copy of the decree was still filed quite late.

3. In the application under S. 5 of the Limitation Act, prayer for condonation of delay has been made on two grounds, firstly, that under S. 23(4) of the Hindu Marriage Act, 1955, as amended (hereinafter to be called the Act) the appellant was entitled to a copy of the decree free of cost and as the same was not supplied, that was a sufficient cause for condonation of delay, and, secondly, that on 26-2-1977 when final arguments were heard in the lower appellate court, the appellant herself was not present in Court and she had instructed her maternal uncle to be present at the hearing. The later, however, though present in Court, did not inform her of the result on the said date. After waiting for about three weeks, she contacted her lawyer at Hoshiarpur who was not available. Then she went to her maternal uncle in the village and along with him went to Hoshiarpur, contacted the lawyer, and learnt from him that the case had been decided against her. After that, an application for obtaining the copy of the judgment was made on 1-4-1977. She received the copy through her counsel on 27-4-1977 by registered post and thereafter filed the appeal on 20-5-1977. During arguments, the leaned counsel did not lay emphasis on the second ground. However, he stressed the first ground and contended that under sub--section (4) of S. 23 of the Act the appellant was entitled to a copy of the decree free of cost. The said provision is reproduced below:--

'23. (1) to (3)... ... ...

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.'

As the court passing the decree of divorce did not perform its duty and did not furnish a copy of the decree free of cost to the appellant, it is argued that till the time this mandatory provision was not complied with, limitation will not begin to run against the appellant. The argument on the face of it is fantastic and needs no serious consideration. According to this provision, any party to the decree could go to the Court and make a prayer that a copy of the decree be furnished to him or her free of cost. However, if the party concerned does not ask for the copy, non--furnishing of the same free of cost by the Court does not save him or her from the applicability of the law of limitation prescribed for filing the appeal. The right to appeal and the period of limitation within which this right can be exercised is provided under S. 28 of the Act, and according to sub--section (4) of that section, every appeal shall be preferred within a period of thirty days from the date of the decree or order. If the purpose of sub--section (4) of S. 28 of the Act was to stop the time from running in case copy of the decree was not supplied free of cost or till the same was not supplied, the Legislature would have expressly provided the same in this sub--section. In the present case the appellant did not feel the necessity of approaching the trial Court for getting copy of the judgment or decree free of costs. On the other hand, she applied for a copy and obtained the same on payment of the necessary charges. Though the copy of the judgment was ready on 16-4-1977, she was not promote and did not think it fit to take delivery of the same after its preparation for about a week. That apart, the appeal was still filed more than three weeks after on 20-5-1077. For this delay there is absolutely no explanation or justification for condoning the same. When the Registry of this Court brought to the notice of the learned counsel for the appellant that it was essential to annex certified copy of the decree with the memo. of appeal, the same was not filed till 29-6-1977 without any plausible explanation. In these circumstances, no case whatsoever is made out for condonation of extraordinary delay in filing the appeal in accordance with law. Consequently the application (C. M. No. 1563--C--II of 1977) for condonation of delay is rejected, with the result that the appeal stands dismissed as time-barred. There will, however, be no order as to costs. C.M. No. 2099--C--II of 1977 stands automatically disposed of.

4. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //