PUSHPA DEVI Vs. NANAK SINGH
HIGH COURT OF JAMMU AND KASHMIR
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Kotwal, J. -
(1.) The short question that falls for determination in this appeal is whether Section 5 of the Jammu & Kashmir Limitation Act, 1995 applies to appeals under Section 34 of the Jammu & Kashmir Hindu Marriage Act, 1980, herein-, after to be referred to as the Act,
(2.) The appellant Pushpa Devi lost her petition under Section 12 of the Act in the court of District Judge, Jammu on 24-2-1981 and preferred an appeal against the aforesaid judgment in the High Court on 2-5-1981. Since it was beyond thirty days, the period of limitation provided for it by Section 34 of the Act, she also moved an application under Section 5 of the Limitation Act, seeking condonation of the delay on various grounds. When this application came up for consideration before Hon'ble the Acting Chief Justice, an objection was taken on behalf of the respondent that Section 5 of the Limitation Act was not applicable to appeals under Section 34 of the Act, which itself prescribed period of limitation for appeals, as its application to such appeals was clearly excluded by Section 29 of the Limitation Act. Reliance was also placed upon a single Bench decision of this court in Sarishta Devi v. Omkar Lal, 1981 Kash LJ 427. The learned Acting Chief Justice being of the view that Section 5 being an independent provision which had nothing to do with computation of period of limitation, its application could not be deemed to have been excluded by Section 29 and referred the case to a larger Bench for reconsideration of the view taken in 1981 Kash LJ 427 (supra).
(3.) Section 29 of the Jammu & Kashmir Limitation Act, which is a facsimile of Section 29 of the Indian Limitation Act, 1908, barring Sub-sections (3) and (4) of the Central Act, which do not occur in the State Act, and are also relevant for the present discussion, reads as under:-
"29. Savings.-- (1) Nothing in this Act shall affect Section 25 of the Contract Act (IX of 1977). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first Schedule the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law and (b) the remaining provisions of this Act shall not apply.";
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