1996 PLP 692 (MLD)

6. The primary question requiring determination is whether, the appeal is time‑barred or not? The perusal of the record shows that the judgment was announced on 22‑2‑1995. The appellant applied for the copy of the judgment on 20‑3‑1995. Twelve days were consumed in obtaining the copy of the judgment. Now the question emerges, whether section 12 of the Limitation Act will be applicable to the appeals under the Family Courts Act. The learned counsel for the appellant contended that the limitation for an appeal is provided in the Family Courts Act. Therefore, the limitation provided in the Family Courts Act is different from the First Schedule of the Limitation Act. Therefore, section 29 of the Limitation Act will come into play. When section 29 of the Limitation Act will apply, then section 12 shall also apply as provided in section 29 and the period spent on obtaining the copies has to be excluded as laid down in section 12 of Limitation Act.

7. The limitation for an appeal is provided in the Family Courts Act. Therefore, section 29 will be applicable to the instant case. For having true perception, I would like to reproduce section 29 of the. Limitation Act, which reads as under: "29(l). Nothing in this Act shall affect section 25 of the Contract Act, 1872. (2)??????? Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law‑‑‑ (a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law; and (b)??????? the remaining provisions of this Act shall not apply. (3)??????? Nothing in this Act shall apply to suits under the Divorce Act. (4)??????? Sections 26 and 27 and the definition of 'easement' in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend."

8. Section 29(2)(2‑A) of the Limitation Act contains where any special or local law prescribes for any suit or appeal or application, prescribed period of limitation different from the period prescribed in the First Schedule then the provisions contained in sections 3, 4, 9 to 18 and 22 shall apply. Now the question emerges whether the period of limitation prescribed under the Family Courts Act is different from the period prescribed in the First Schedule of the Limitation Act. In the First Schedule of the Limitation Act no period of the limitation has been provided for an appeal against the judgment of Family Court. When no period is provided in the First Schedule, then how it can be said that the period prescribed in the Family Courts Act is different from the Limitation Act? The language used by the Legislature in section 29(2) is "a period of limitation different from the period prescribed thereof by the First Schedule". In the instant case the interpretation of words "a period of limitation different from the period prescribed in the First Schedule" is required. The period of limitation may be different under two circumstances. It may be different if it modifies or alter a period of limitation fixed by the First Schedule of the Limitation Act., It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. It is also pertinent to note that if the First Schedule of the Limitation Act does not contain any period of limitation for a particular appeal and the special law provides the period of limitation, then to that extent the special law will be different from the Limitation Act. This view finds support from AIR 1953 Bom. 35 relevant page 36, which reads as under: ‑‑ (3)??????? The first question is whether the special law as embodied in the Land Requisition Act contains a period of limitation for the appeal provided therein which is different from the period prescribed therefore by the First Schedule of the Limitation Act. The contention of Mr. Adarkar is that subsection (2) only applies when you find a period of limitation laid down in the First Schedule and a special law alters or modifies that period, and inasmuch as the Limitation Act does not provide for a period of limitation in respect of an appeal from a special officer to the High Court, section 29(2) has no application to this particular special law. In our opinion that is not the correct interpretation to put upon the language used by the Legislature, viz. "a period of limitation different from the period prescribed therefor by the First Schedule". The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the First Schedule to the Limitation Act. It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the First Schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act."

9. In the instant case the period of limitation against the judgment of the Family Court does not find any place in the Limitation Act, but the period was provided 30 days in the Family Courts Act. Therefore, the period prescribed for an appeal against the judgment of the Family Court is different from the First Schedule of the Limitation Act. Therefore, section 29 of the Limitation Act will be applicable to the appeals under the Family Courts Act. .

10. In this case the judgment was announced by the Family Court on 22‑2‑1995 and the appeal was filed on 1‑4‑1995. Therefore, the appeal was filed after 38 days of the judgment. The appellant applied for the copy of the judgment on 20‑3‑1995 and the copy was delivered to him on 21‑4‑1995, after the 12 days, so the 12 days shall be excluded from the period of limitation. Therefore, the appeal is within time.

11. The perusal of the file of the lower Court shows that the, appellant sought the dissolution of marriage on the basis of cruelty, non-payment of maintenance and non‑performance of marital obligations. Alternatively, it was prayed that the marriage may be dissolved on the basis of Khula. Issue No.3 was regarding the cruelty. According to the judgment of the lower Court, the issue No.3 was proved. When the lower Court reached on the conclusion that issue No.3 is proved, then it was enjoined upon the lower Court to pass the decree in favour of the appellant on the basis of cruelty. There was no need to consider the alternative ground alleged by the appellant.

12. Assuming for the sake of arguments that issue No.3 would have not been proved even then the lower Court was not justified in ordering the appellant to return the ornaments. The findings of the lower Court regarding the return of the ornaments is based on the offer made by the defendant, that if the plaintiff states on the Holy Qur'an that she is not retaining the ornaments, then he will withdraw from the ornaments. But the father of the plaintiff made a counter‑offer that if defendant states on the Holy Qur'an then he is ready to give the ornaments of such a value. The defendant stated as such on the Holy Qur'an so the decree for the return of the ornaments was passed against the appellant The perusal of the file of the lower Court shows that in this case on 16‑2‑1995, the arguments were heard and the case was fixed for judgment for 19‑2‑1995. The judgment could not be announced on 19‑2‑1995 and the case fixed for 22‑2‑1995. On 22‑2‑1995, the judgment was announced. No interlocutory order contains that when the offer was made by the defendant and counter‑offer was made by the father of the appellant and defendant‑respondent stated as such on the Holy Qur'an. ???????????

13. Even otherwise, if some counter‑offer was made by the father of the appellant, then the appellant was not bound by the offer made by her father. Her father was only bound by the offer made by him. He was neither the attorney of the appellant nor he made any offer on behalf of the appellant. Therefore, the lower Court was not justified in passing the decree on the basis of counter‑offer node by the father of the appellant.

14. As the contention of the learned counsel for the respondent is concerned that the finding of the lower Court regarding cruelty is illegal and wrong, it has' no substance. Issue No.3 was regarding the cruelty, which has been decided in favour of the appellant. No appeal against this finding of the Family Court was filed by the respondent. Therefore, the finding of the Family Court on the issue of cruelty has attained finality and this question cannot be reopened.

15. The nutshell of the above discussion is that the decree on the basis of Khula' passed by the lower Court is set aside and the decree on the basis of cruelty is passed against the respondent as prayed by the plaintiff‑appellant. A.A./16/Sh.C./AJ&K ????????????????????????????????????????????????????????????????????????? Order accordingly.