Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Mohammad Rafiq and Narendra Singh Dhaddha, JJ. quashed the appeal which pointed out that the appeal against the judgment of the Family Court was invalid as the period of limitation for filing an appeal against the judgment of the Family Court vis-à-vis the Family Courts Act, 1984 had expired.

The counsel for the appellant, Ganesh Khanna on behalf of Shiven Gupta, taking note of Section 19(3) of the Family Courts Act which prescribes a period of 30 days for filing an appeal, pointed out the delay of 57 days in filing of the appeal. However, the Court also considered provisions of Section 28(4) of the Hindu Marriage Act, 1955 which postulates a period of 90 days for filing an appeal against any decree or order passed under the provisions of the Hindu Marriage Act.

The Court relied on Bombay High Court’s view in Shivram Dodanna Shetty v. Shamila Shivram Shetty, 2016 SCC OnLine Bom 9844 which held the limitation period prescribed in the Hindu Marriage Act to be the prevailing one since it had seen the latest amendment with respect to the period of limitations.

In view of the above, the Court ordered the Judicial Registrar of the Court to issue the necessary direction to the Office which was to consider 90 days as the period of limitation with respect to appeals filed against the judgments and decrees passed by the Family Court. [Kuldeep Yadav v. Anita Yadav, 2019 SCC OnLine Raj 4016, decided on 06-11-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of  Mohammad Rafiq and  Narendra Singh Dhaddha, JJ.  while harmonizing the provisions contained under Section 19 of the Family Courts Act, 1984 and Section 28 of the Hindu Marriage Act, 1955, held that the period of limitation for preferring an appeal from a decision of the Family Court was 90 days.

A defect was pointed out in view of Section 19(3) of the Family Court Act, 1984, wherein the period of limitation for filing an appeal against the judgment of the Family Court was 30 days and the present appeal was thus barred by limitation having been filed with a delay of 57 days.

The appellant relied on the order passed by the present Court in Anita Chaudhary v. Rajesh Chaudhary, (D.B. Civil Misc. Appeal No. 2586/2017) wherein also the Registry, taking note of Section 19(3) of the Family Court Act, 1984, pointed out a delay in filing of appeal but considering provisions of Section 28(4) of the Hindu Marriage Act, 1955 which postulated a period of 90 days for filing of the appeal against any decree or order passed under the provisions of the Act of 1955, this Court directed that the appeal be considered as competent having been filed within the prescribed period of limitation.

The Supreme Court in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 had held that: “In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time period of 30 days prescribed for filing the appeal are insufficient and inadequate. In the absence of an appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side. A minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void.”

Even if both the Acts are considered on certain subjects and situations to be special and general, then also, as a matter of sound interpretation and keeping in view the purpose for providing a larger period of limitation, it must be construed that the appeals arising out of the judgment and orders passed by the Family Court shall be governed by a larger period of limitation prescribed under Section 28(4) of the Act of 1955. Since an appeal had been filed within 90 days which was the prescribed period of limitation under Section 28(4) of the Act of 1955, the same is held to be within limitation. [Kuldeep Yadav v. Anita Yadav, 2019 SCC OnLine Raj 4016, decided on 06-11-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bhakru, J. dismissed a writ petition filed for recovering the application fee deposited with the Medical Council of India for establishment of a new medical college.

The petitioner had filed an application for establishing a new medical college before the MCI for the academic year commencing from 2014. However, the MCI rejected the application. Thereafter, the petitioner filed an application for refund of the application fee deposited, which application was also rejected. Aggrieved thus, the petitioner filed the instant petition for recovery of Rs 7 lakhs deposited as application fee along with interest thereon.

The High Court referred to Regulation 4 of the Establishment of Medical College Regulations, 1999. It was apparent on reading the said regulation that the application fee was non-refundable. On this count alone, the instant petition was liable to be dismissed. However, the High Court also noted that the petition was filed after more than four years from the date when the application was rejected by the MCI. Since the petition was filed after the period of limitation (3 years), the action was barred by the limitation, there being no credible explanation for the delay. It was observed that although Limitation Act, 1963 may not strictly apply to proceedings under Article 226 of the Constitution, however, it is a settled law that the courts do not extend the discretionary remedy to applicants who have failed to approach the court within time. Furthermore, recourse to proceedings under the Article is not available for recovering any amount where suit for recovery of that amount would be barred by limitation. In view of the aforementioned, the Court dismissed the petition. [Dr R.N. Gupta Technical Educational Society v. Union of India,2018 SCC OnLine Del 10749, dated 17-08-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, J.,decided an application for condonation of delay filed under Order 41 Rule 3A of Civil Procedure Code, wherein, while granting relief to the appellant (applicant herein), the Court held that no exemption for time lost due to carelessness of the council could be taken into account while calculating period limitation.

The application was filed for condoning the delay of 6 days in filing the appeal against the judgment of District Judge. The appeal was to be filed within a period of 90 days of the judgment as provided in Article 116(a) of Limitation Act 1963. However, there was a delay of 6 days in filing the appeal. The appellant submitted that the certified copy of the impugned judgment was misplaced by the counsel of the appellant. A photocopy of the same was submitted along with the appeal. On receiving an objection from the Registry, the counsel applied for another certified copy. The second copy was received after 34 days, which, according to the appellant, was the cause of the resultant delay.

The High Court considered the submissions and referred to Section 12 of Limitation Act, which provides for exemption of such time as was required for procuring a certified copy of the judgment to be appealed against while calculating the period of limitation. The Court, however, observed that such exemption was to be taken only for the time lost in acquiring the first copy. Further, the clarification that the first certified copy of the judgment was lost holds no water, as no provision has been made for computing limitation for the carelessness of the counsel. The Court was of the view that proper grounds were not shown for allowing condonation. Nonetheless, the Court held, the appellant ought not to suffer on account of what transpired in the chambers of his counsel. Thus, keeping in mind the paramount importance of handing out substantial justice, the Court exercised discretion in condoning the delay. The application was accordingly disposed of. [Nil Kumar Dahal v. Indira Dahal,2018 SCC OnLine Sikk 123, dated 26-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Dispute Redressal Commission:  The Commission held that if a complaint is filed beyond a period of two years from when the cause of action has happened the same will not be entertained, unless there are sufficient reasons for condoning the delay in filing the appeal.

The Consumer Forum through a Division Bench, comprising of, B.C. Gupta, Presiding Member and S.M. Kantikar, Member dismissed an appeal filed by M/S. Kiran Gems Pvt. Ltd. The brief facts, being that the appellant company had purchased an insurance policy from the respondent, to cover all the damages that may arise in the normal course of business ,but upon the actual event of an abnormal activity, the Insurance Company did not entertain the full claim of the appellant and the same being under dispute between the two parties, in the present case. The appellant also contested that the Insurance company owed a total sum of Rs 35,15,014 to them, and further argued that the dismissal of their previous complaint regarding the same matter (Miscellaneous Application, MA/90/2011) is not valid.

The Commission held that the appeal was filed beyond the mentioned time period of 2 years and because of this delay the appellant cannot be heard. The Bench also referred to the judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, (2011) 14 SCC 578 in which the Hon’ble Apex Court held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.”

The Bench ordered the dismissal of the appeal because there was a delay of 2178 days in filing the complaint and no remarkable justification was given by the appellant while explaining this delay.  [M/s Kiran Gems Pvt. Ltd. v. Oriental Insurance Co. Ltd., Appeal Number 1718 of 2016, decided on 12-12-2017]