PUSHPA ALIAS HEMPUSHPA Vs. PRADUMAN KUMAR OJHA

JUDGEMENT

(1.) THE trial Court has passed a decree of judicial separation between the parties, a Hindu spouse. The wife has come up in appeal. However, the office reports that the appeal is barred by time as having been filed beyond 48 days of the period prescribed.

(2.) AN application under Section 5 of Limitation Act seeking condonation of delay in filing the appeal has been filed along with the appeal memo. It is stated that the appellant, resident of a village and less educated, ignorant of law, was advised by her local counsel that the prescribed period of limitation for filing an appeal to the High Court against the impugned decree was 90 days. She acted on the legal advice. She contacted the counsel at Gwalior within the suggested period of limitation. She was told that the period of limitation was 30 and not 90 days and hence the appeal was barred by limitation. The appellant in her application, duly supported by an affidavit, contends that the legal advice bona fide acted upon by her, though given by a counsel mistaken and misinformed about the correct provision as to limitation applicable to such cases, should not come in her way of seeking justice from this Court. The fact stated in the application have been controverted by the respondent but without filing a counter affidavit. On behalf of the appellant, affidavit of her trial Court counsel has been filed. The counsel candidly admits his ignorance by explaining that he had put in only a brief tenure of practice which contributed to the misadventure.

(3.) THE short question arising is whether in the facts and circumstances the delay in preferring the appeal deserves to be condoned as based on sufficient cause.