The court held that section 5 of the Limitation Act applies to appeals under the Hindu Marriage Act, but the appellant had not provided a sufficient explanation for the delay in filing the appeal.

D.P.S. Chauhan, J.

1. Heard the learned counsel for the applicant and the learned counsel for the respondent on the application for condonation of delay moved under section 5 Indian Limitation Act, 1963.

2. Learned counsel for the appellant submitted firstly that section 5 of the Limitation Act would apply to the delay which has occurred in filing of the appeal which is barred by 19 days, and secondly when Limitation Act is applicable, then, there exists sufficient cause for condonation of delay within the meaning of section 5 of the Limitation Act.

3. Both the submissions have been rebutted by the learned counsel for the respondent Shri G. C. Jain. He submitted that firstly, section 5 of the Limitation Act would not apply as per the provisions of sub-section (3) of section 29 of the Limitation Act, 1963 and secondly, the each day's delay has not been explained and the explanation given in the application does not constitute sufficient cause which may warrant condonation of delay.

4. Learned counsel for the applicant in regard to his first submission, relied on the case of the Supreme Court in Smt. Lata Kamat v. Vilas, AIR 1989 SC 1477. The facts of that case were different. The question involved in that case was whether the time spent in obtaining the copy of the judgment could be excluded for computing the period of Limitation of appeal. The Court considered the provisions of Sub-section (2) of section 29 of the Limitation Act. In Para 12, the Court observed that "According to clause (2) of section 29, provisions contained in sections 4 to 24 will be applicable unless they are not expressly excluded. It is clear that the provisions of the Act do not exclude operation of provisions of sections 4 to 24 of the Limitation Act and therefore it could not be said that these provisions will not be applicable. It is, therefore, clear that to an appeal under section 28 of the Hindu Marriage Act, provisions contained in section 12, clause (2) will be applicable, therefore, the time required for obtaining copies of the judgment will have to be excluded for computing the period of limitation for appeal."

5. The question for consideration is regarding sub-section (3) of section 29 of the Limitation Act and the Court held in Para 10 that so far as clause (3) is concerned, the impact of it will be that the provisions of the Limitation Act will not apply so far as the issue or pending proceeding under the Act is concerned but clause (3) will not cover the appeal. It appears that other proceedings have been interpreted as original proceedings.

6. In view of the above, the first point has to be decided in favour of the applicant.

7. The second point is regarding the sufficiency of the cause and the objection of the learned counsel for the respondent is two fold :-

(1) That each day's delay has not been explained; and

(2) What has been stated, does not constitute a sufficient cause.

8. For the first limb of the arguments he relies on the decision of the Supreme Court in Randal v. Rewa Coalfields Ltd., AIR 1962 SC 361.

The relevant portion is extracted below :-

"In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of section 5. The context seems to suggest that "within such period" means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed."

It is not that mechanical proces