1987 (9) TMI 427 - HC - Indian Laws

Summary

Issues Involved:
1. Applicability of Section 5 of the Limitation Act to matrimonial appeals under the Hindu Marriage Act.
2. Interpretation of the term "proceeding" in Section 29(3) of the Limitation Act.
3. Requirement of filing an application for condonation of delay simultaneously with the memorandum of appeal under Rule 3A of Order 41 of the Code of Civil Procedure.

Issue-wise Detailed Analysis:

1. Applicability of Section 5 of the Limitation Act to Matrimonial Appeals under the Hindu Marriage Act:

The court examined whether Section 5 of the Limitation Act applies to matrimonial appeals under the Hindu Marriage Act. The judgment clarified that an appeal against a decree under the Hindu Marriage Act is governed by Section 28 of that Act and not by the general law. The court referenced the Division Bench decisions in Sohhana v. Amar and Pratima v. Kamal, which established that such appeals are under the Hindu Marriage Act. Section 29(2) of the Limitation Act makes Sections 3 to 25 applicable to all suits, appeals, and applications under any 'special law,' and the Hindu Marriage Act qualifies as such. Therefore, the provisions of Sections 3 to 25, including Section 5, apply to appeals under the Hindu Marriage Act.

2. Interpretation of the Term "Proceeding" in Section 29(3) of the Limitation Act:

The court discussed the interpretation of "proceeding" in Section 29(3) of the Limitation Act, which provides that the Act does not apply to suits or other proceedings under any law for the time being in force concerning marriage and divorce. The court agreed that the term "proceeding" is broad enough to include appeals, applications, and suits. However, it applied the rule of noscitur a sociis, which suggests that words take their meaning from the context in which they are used. The court concluded that "proceeding" in Section 29(3) should be interpreted to mean original proceedings in the nature of suits and not appeals. This interpretation aligns with the intent of the Legislature and avoids excluding appeals from the beneficial provisions of the Limitation Act.

3. Requirement of Filing an Application for Condonation of Delay Simultaneously with the Memorandum of Appeal under Rule 3A of Order 41 of the Code of Civil Procedure:

The court addressed whether Rule 3A of Order 41, which requires an application for condonation of delay to accompany the memorandum of appeal, is mandatory. The court emphasized that Rule 3A is procedural and should be interpreted to facilitate justice rather than penalize parties for procedural lapses. The court cited the Supreme Court's observations in Sangram Singh v. Election Tribunal and Jai Jai Ram Manoharlal v. National Building Material Supply, which highlighted that procedural rules are intended to aid justice, not obstruct it. The court held that non-compliance with Rule 3A does not warrant outright rejection of the appeal and that the court retains jurisdiction to condone the delay on an application filed later. The court noted that if an appeal is dismissed due to the absence of an accompanying application, the court would be acting within its jurisdiction, but it is not mandatory to do so.

Conclusion:

The court overruled the preliminary objections raised by the respondent regarding the applicability of Section 5 of the Limitation Act and the requirement under Rule 3A of Order 41. The appeal was admitted rightly, and the order of admission is no longer open to challenge. The appeal was scheduled for hearing on merits, and the respondent was ordered to pay costs to the appellant.