SURYA KANT, J. - (1.) THIS application under Section 5 of the Limitation Act, 1963 seeks condonation of delay of 248 days in filing the accompanying Letters Patent Appeal. The said appeal, in turn, has been filed against the judgment and order dated July 30, 2001 passed by the learned Single Judge in FAO No. 3-M of 1996 whereby the respondent's appeal against the decree of divorce, dated 19.10.1995, granted by the Additional District Judge, Amritsar in a divorce petition filed by the appellant herein, was allowed and the divorce petition was consequently dismissed.
(2.) BEFORE adverting to the causa sine qua-non pleaded for condonation of delay, brief facts giving rise to this matrimonial dispute may be stated. 2-a. The appellant was a divorcee who had obtained divorce from his first wife on 24.12.1987. In order to solemnize second marriage, he gave an advertisement in the newspaper, The Tribune, dated 16.1.1988 and the respondent herein having responded thereto, the marriage between them was solemnized on 6.3.1988 at Ajnala as per Sikh religious rites. At that time, the appellant was employed as a Junior Engineer in Punjab State Electricity Board whereas the respondent was employed as a Teacher in a Government Primary School. The appellant and the respondent lived together as husband and wife till 20.4.1989 but no child was born out of this wedlock. As the appellant's second marriage also went out of track, he instituted a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent on the grounds of cruelty and desertion. The respondent contested the aforesaid petition and made counter-allegations. The appellant, however, did not press the allegation of 'cruelty' against the respondent but sought dissolution of the marriage on the ground of 'desertion'. The learned Additional District Judge, Amritsar vide his judgment and decree, dated 19.10.1995, after holding that the factum of separation with an intent to bring cohabitation permanently to an end on the part of the respondent and that too without any reasonable cause and/or consent of the appellant stood established, accepted the appellant's petition and passed a decree of divorce in his favour. 2-b. Aggrieved, the respondent preferred FAO No. 3-M of 1996 in this Court. It is an undisputed fact that when the above mentioned appeal came up for final hearing before the learned Single Judge on July 30, 2001, the appellant remained unrepresented in person and/or through counsel. The Learned Single Judge, vide his judgment, dated July 30, 2001, allowed the respondent's appeal and after setting aside the decree of divorce, dismissed the appellant's divorce petition ex-parte. 2-c. Thereafter, Civil Misc. No. 5974-CII/2002 was moved by the appellant under Order IX Rule 13 CPC for setting aside the ex-parte judgment and order, dated July 30, 2001, of the Learned Single Judge. In the aforesaid application, the appellant averred that :- (i) he had engaged Shri Nirmal Bans Singh Gujral, Advocate, as his counsel in the appeal; (ii) Shri Nirmal Bans Singh Gujral, Advocate, had been seriously ill and confined to bed since January 2001 and had not been attending the High Court since then; (iii) Shri Nirmal Bans Singh Gujral, Advocate expired on 15.9.2001 after prolonged illness; (iv) the appellant could not engage another counsel at that time as he himself had gone to the United States of America by a flight of United Airlines on 13.7.2001; (v) the appellant entered the airport in the night of 12.7.2001 and left India on 13.7.2001; (vi) the appellant had gone with a return-ticket, however, due to attack on the World Trade Centre in the USA, the flights of the United Airlines were stopped and the appellant could reach Hong Kong on 3.1.2002 only through the said Airlines from where he managed to reach India on 5.1.2002 through Kathey Pacific Airlines; (vii) the appellant was not aware of the death of his counsel and when he came to Chandigarh on 3.2.2002, wife of Shri Gujral told him about the demise of Shri Gujral on 15.9.2001; (viii) the appellant then engaged another counsel and upon inspection of the record on 4.2.2002, he came to know that the afore-mentioned appeal had already been decided on 30.7.2001; (ix) the appellant immediately applied for a certified copy of the judgment and also moved an application for setting aside the said ex-parte judgment and order. The Learned Single Judge, however, vide his order, dated 4.4.2002, dismissed the aforesaid application after observing that the counsel for the applicant (appellant herein) was heard on merits also and there was no reason for him "to take a different view". The ex-parte judgment, dated July 30, 2001, referred to above, is under challenge in this Letters Patent Appeal which has been filed along with an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 248 days. In the application, the appellant has reiterated that he had engaged Shri Nirmal Bans Singh Gujral, Advocate to defend him in the appeal filed by the respondent in this Court and Shri Gujral, on account of serious illness, had been confined to bed since January 2001 and was not able to attend the court till he expired on 15.9.2001 due to which the appellant remained unrepresented before the Learned Single Judge on 30.7.2001. It is also averred that the appellant had no knowledge of the passing of the impugned judgment and order and, thus, has a "sufficient cause" for not preferring the appeal "within the prescribed limitation period".
(3.) NOTICE of this application was given to the respondent who has contested the same by way of her reply-affidavit, dated November 7, 2003. In para 4 of the said affidavit, the respondent does not dispute the fact that the appellant had engaged Shri Nirmal Bans Singh Gujral, Advocate in the first appeal to that Shri Gujral remained sick till he expired on 15.9.2001. In fact, the respondent has candidly admitted that, "Shri Nirmal Bans Singh Gujral, Advocate remained sick of several years and who expired on 15.9.2001. His work was being looked after by his junior. Even otherwise, it was the duty of the appellant to have pursued the case if his counsel was sick".;