S.C. Mital, J.@mdashPrithvi Raj has preferred this appeal against the order of the Additional District Judge, Hoshiarpur dismissing his petition filed u/s 13 of the Hindu Marriage Act seeking divorce from his wife Smt. Kamal Kanta. Admittedly, this appeal was filed ten days after the expiry of limitation Along with the memo of Appeal, no application for condonation thereof was made. It was in consequence of the objection raised by the Registry that the present application u/s 5 of the Limitation Act was filed. The condonation of delay in filing the appeal has been strongly opposed on behalf of Kamal Kama. Relying on Om Sorup v. Gur Narayan (1965) 67 P.L.R. 634, learned Counsel for Kamal Kanta (Respondent) contended that Prithvi Raj (Appellant) is required to explain each day''s delay. In this regard, the following averments made in the application deserve consideration:
Unfortunately for the Petitioner, the calculation of the period taken for obtaining certified copy of the judgment and decree, there appears to be mistake which resulted in delay of 5/6 days in prefer-ing the appeal.
That the Petitioner from 11th December, 1978 to 31st December, was inconstant correspondence with his friend in Hoshiarpur regarding the progress of this application for a certified copy of the judgment and decree with a view to file the appeal in time.
That the Hon''ble court re-opened after winter vacation on 5th January 1999(sic), the appeal should have been filed on the reopening day, but due to bonafide mistake of the time taken by the Petitioner''s friend to despatch the copy to Delhi there his been brief delay of 3 days. The appeal was filed on 15th January 1979....
Learned Counsel for Kamal Kanta objected that it is not a cue of mistake in calculation of any period and that in paragraph 2, the delay is calculated as 5/6 days whereas in paragraph 5, the same is said to be of 3 days. It was next contended that a perusal of the certified copies of judgment and decree shows that they were ready on 6th December, 1978, but the delivery thereof was taken on the following 20th. The averment made in paragraph 4 shows that it was after 11th December, 1978, that Prithvi Raj wrote to his friend in Hoshiarpur to obtain the copy The name of the friend was not ''disclosed. Besides, Prithvi Raj has been taking contradictory stand with regard to his ordinary place of residence. In the Memo of Parties, he has declared himself to be resident of Una Road, Hoshiarpur, In the heading of the application under consideration again he has shown himself to be resident of Hoshiarpur, but in his affidavit dated 18th April, 1979, supporting the same, he has described himself to be resident of Library Road, Delhi, In order to counter the objection of learned Counsel for Kamal Kanta, Prithvi Raj filed affidavit dated 27th November, 1979, in which he has again shown himself to be resident of the above-said place in Delhi, but it is not clear as to when Prithvi Raj shifted to Delhi and was thus prevented from pursuing the application for getting the certified copies of the impugned judgment and decree in Hoshiarpur. There appears merit in the objection of the learned Counsel for Kamal Kanta.
2. For appreciating the next objection raised by the learned Counsel for Kamal Kanta, it may be mentioned here that the appeal was filed on 15th January, 1579. On the following 19th, the Registrar raised an objection that notwithstanding the same being barred by time, there is no application for condonation of delay. Although the direction was to refile the appeal within a week, yet it was actually refiled on 19th April, 1979. Learned Counsel for Prithvi Raj Mr. B. R. Kapur, explained that he being a practising lawyer of Delhi, did not come to Chandigarh before 19th April 1977, when he came to Chandigarh on the said date, the appeal was returned to him and he complied with the direction The explanation offered by the learned Counsel cannot be held to be tenable because, as pointed out by the learned Counsel for Kamal Kanta, alongwith Mr. B.R. Kapur, two other Advocates practising in Chandigarh were engaged by Prithvi Raj vide power of attorney annexed with the Memo of Appeal. Besides, urged the learned Counsel for Kamal Kanta, that if Mr. B. R. Kapur came to know of the objection raised by the Registry of this Court that the appeal was barred by time on 19th April, 1979, on his visit to Chandigarh, one fails to see how the affidavit of Prithvi Raj was not attested in Delhi on 18th April, 1979. This is the first affidavit supporting the application under consideration allegedly filed on 19th April, 1979. There is thus merit in the objection of the learned Counsel for Kamal Kanta that Prithvi Raj knew full well the said objection before the filing of the present application There was a long delay of about three months in applying for condoning the delay. Within this period, urged the learned Counsel, Prithvi Raj had ample time to make out any excuse.
3. For the foregoing reasons, we find that no case was made out to condone the delay That being so, the appeal is hereby dismissed as birred by them. The parties are left to bear their own costs.
