• Condonation of delay 425 days u/s 5 of Limitation Act & setting aside dismissal order after 425 days

Respected all Ld. Advocates,
My wife filed a Mat suit against me under section 10 of the Hindu Marriage Act 1955, Praying for judicial Separation and also prayed for maintenance and expenses of proceedings under section 24 and 26 of the Hindu Marriage Act 1955, in the Court of Ld. District Judge at Kolkata, North 24 PGS, on 05/02/2015 .
The case was under proceedings more than one year. My wife was very irregular and became absent in many court dates. That she was absent without any step from her side on date 23/02/2016 and 08/03/2016 , Ld. Court still pleased to gave her a chance to appear on date 28/07/2016 . she became absent without any step from her side on that date also. Usually for non taking any step and absent frequently on 28/07/2016, Ld. Court has been pleased to file show cause by the petitioner / my wife as why the case should not be dismissed for default to 07/09/2016 .
Finally on date 07/09/2016 due to absent , non taking any step or show cause by the petitioner / my wife the Ld. Court has been pleased to dismiss the said suits for default.
That my said wife was sleeping well and did not turn back to the court more than 425 days (one year two months !) and now on 27/11/2017 she filed an application in the same Ld. District Judge Court showing some false reason that her advocate was not aware of court dates and miscommunication of dates etc. and praying for condonation of delay of 425 days under section 5 of the Limitation Act and restoration of Mat Suit and other suits in its original number and file by setting aside the dismissal order dated 07/09/2016 under order 9 rule 9 read with section 151 of the CPC as amended up to date.
Respected Sir, I shall remain highly grateful to you for your kindness considering the above mentioned facts I am seeking your legal advice and guidance :
1)	How many days delay can be condoned under section 5 of Limitation Act and conditions if any.
2)	Power of Ld. District Judge for setting aside a dismissal order after so much of delay(425 days) ordered by the same District Court. 
3)	Can I appeal to Kolkata High Court if my written objection not granted and condonation of delay and restoration of the said suits allowed? If I appeal to High Court, within how many days I should appeal, is there any time limit to go High Court against any direction or order by District Judges Court ?
Asked 4 years ago in Civil Law

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9 Answers

1. There's no upper limit of delay prescribed. There are cases where over 5 years delay has been condoned and then there are other set of cases, where even 30 days delay is not approved off. Delay in approaching the Court has to be explained properly. If the Court is satisfied with the reasons given for the delay on the count that there was sufficient cause for not preferring an appeal or an application within such period, it can condone the delay.

2. Oppose her application for delay condonation and choose to file an objection in response to it.

3. Yes, approach the High Court if the delay is condoned and case is restored. The period of limitation to approach the High Curt is 90 days.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1) family court would condone delay in filing application for restoration of matrimonial suit in interests of justice and subject to Payment of costs

2) you may appeal to HC against said order within period of 30 days of receipt of certified copy of order but HC would uphold order of district court

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

1) There is no upper.limit it is on descrition of.the court based on the reason of delay if the court is satisfied it can condone the delay and restore the case if not.satisfied it can dismiss the application to condone delay. In condonation of delay each day of delay has to be explained

2) Yes district court has power to condone the delay of 425 days. You.can file.an objection.to application and file your defence as to why it should not be.restored and delay should not be condoned.

3) if delay is condoned than.tha same order can be challanged by you.before the high court in 90 days .

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes, the fact that you have been acquitted in the 498a case, you can take its benefit here.

You free to file a divorce case, if you so wish to.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. There is no fixed time for this, it is the discrition of the court.

2. dj has the power to condone this delay.

3. If the delay is condoned without considering your reply then you may appeal before the HC.

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes you will certainly get advantage of this fact that you are being harassed for no reason and that she has been putting false charges on you constantly.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi,

The application for condonation of delay would be allowed only when there is specific and reasonable reason for delay. You are suggested to contest both the applications i.e. for condonation of delay and setting aside the dismissal order. If your points are not considered by the court and the order is granted in her favour, then you can appeal to Kolkata High Court. The time of appeal is 90 days. After acquittal in criminal case, you should file a case for defamation and ask for damages from her and the police. You need to project all these points in reply and arguments in the court at present proceedings.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. There are rulings of high courts condoning delay of more than 10 years also hence the delay of just 425 days will be condoned by the sessions court or respective court by imposing fine or costs.

3. If you are aggrieved over the decision to condone the delay by the district court, you may prefer a revision before the high court and this revision shall be filed within 90 days from the date of passing the order by the trial court.

T Kalaiselvan
Advocate, Vellore
78073 Answers
1543 Consultations

5.0 on 5.0

If she has filed a judicial separation petition, you may oppose it and file a petition seeking divorce on the grounds of cruelty and desertion, non-cohabitation etc.

T Kalaiselvan
Advocate, Vellore
78073 Answers
1543 Consultations

5.0 on 5.0

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