SURJIT KAUR Vs. BACHAN SINGH

JUDGEMENT

(1.) This is an application under Sections 5 and 14 of the Indian Limitation Act praying that the delay in filing the appeal be condoned. It is stated that the trial Court passed a decree for restitution of conjugal rights against the petitioner on August 10, 1978. It is alleged that the petitioner after obtaining a copy of the judgment and decree, filed an appeal in the Court of Additional District Judge, Barnala, within limitation on the advice of Mr. Mohan Lal, her counsel. Later on, an objection was taken in that Court that the appeal was not maintainable before the Additional District Judge. The Additional District Judge after hearing the parties came to the conclusion that no appeal was maintainable before him and consequently he returned the memo of appeal on January 16, 1979. Thereafter the petitioner filed an appeal in this Court on January 25, 1979. It is stated that the appeal was filed before the Additional District Judge on the mistaken advice of the counsel. Under these circumstances it is prayed that the delay in filing the appeal in this Court be condoned. The application has been contested by the respondent.

(2.) The only question that arises for determination in the present case is whether on the facts and circumstances of this case the delay should be condoned. It is contended by Mr. Mittal, learned counsel for the petitioner, that Section 28 of the Hindu Marriage Act under which an appeal is maintainable against a decree of a trial Court is open to two interpretations, firstly that the appeal can be maintained in the District Court and secondly that it is maintainable in the High Court. He urges that the counsel for the petitioner took the first view and filed the appeal before the Additional District Judge, Barnala. According to Mr. Mittal, the petitioner should not be allowed to suffer on account of the mistaken advice of the counsel.

(3.) We have heard the learned counsel for the parties at a considerable length but regret our inability to accept the contention of Mr. Mittal. Section 9 of the Act provides that a petition for restitution of conjugal rights is maintainable in the District Court. "District Court" has been defined in sub-section (b) of Section 3 of the Act and it means, in any area for which there is a City Civil Court, that Court, and in any other area of the principal Civil Court of original jurisdiction, and includes any other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt within the Act. There are no city Civil Courts in the Punjab. Therefore, the District Judge or the Court that is specified by the State Government is entitled to hear petition under Section 9 of the Act. Normally the petitions under Section 9 should be heard by principal Civil Court of original jurisdiction. But the State Government has delegated the powers to decide petition under the said Section to the Subordinate Judges, Ist Class. Their Courts will, therefore, be deemed to be District Courts. Appeal against the decree of the District Court under Section 28 of the Act will be maintainable in this Court. Consequently we are of the view that the Section is very clear and is not subject to two interpretations, as contended by the learned counsel for the petitioner. Moreover, no affidavit of Mr. Mohan Lal, counsel for the petitioner has been filed in this Court. After taking into consideration all the aforesaid circumstances we are of the view that there are no sufficient grounds for condoning the delay.