PUSHPA RAINA AND ANOTHER vs SONAM BILLAWARIA AND ANOTHER

28
HIGH COURT OF JAMMU, KASHMIR & LADAKH

AT JAMMU



CRM(M) No. 201/2026





Pushpa Raina and another …..Appellant(s)/Petitioner(s)


Through: Mr. Anil K. Verma, Adv.

vs


Sonam Billawaria and another .…. Respondent(s)

Through: Ms. Zoya Bhardwaj, Adv.



Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE


ORDER
31.08.2026


1. The petitioners, through the medium of instant petition, has challenged
nd
order dated 12.02.2026 passed by the learned 2 Additional Sessions
Judge, Jammu (for short the appellate court), whereby the application filed
by the petitioners seeking condonation of delay in filing the appeal against
st
order dated 11.04.2025 passed by the Judicial Magistrate 1 Class (City
Judge), Jammu (hereinafter to be referred as the trial Magistrate), has been
dismissed and consequently, the appeal has also been dismissed.
2. I have heard learned counsel for the parties and perused the record.
3. It appears that an application came to be filed by respondent No. 1 against
the petitioners and respondent No. 2 under section 12 of the Protection of
Women from Domestic Violence Act, 2005(for short the DV Act) before
the Court of the learned trial Magistrate. Upon appearance of the
petitioners before the trial Magistrate, they filed an application for
dropping of the proceedings against them. The said application was
dismissed by the learned Magistrate in terms of order dated 11.04.2025.

Against the said order, the petitioners filed an appeal under section 29 of
the DV Act before the learned appellate court. Since the appeal was filed
beyond the prescribed period of limitation, the petitioners also filed an
application seeking condonation of delay in filing the appeal.
4. In their application, the petitioners pleaded that petitioner No. 2 has
undergone surgery and he could not travel to Jammu for appending his
signatures on the documents, to be filed in the court, as a result of which,
the appeal could not be filed within the statutory period of 30 days. It was
also pleaded that due to ill health of petitioner No. 2, he could not visit his
counsel for imparting instructions in connection with taking further action
in the matter and it was only on 06.06.2025 that the petitioners were able
to contact their counsel, who advised them to obtain certified copy of
order dated 11.04.2025 passed by the learned trial Magistrate, whereafter
the courts were closed for summer vacation and the certified copy could
be made available only on 01.07.2025. It was also pleaded that after
obtaining the certified copy of the order, some time was consumed for
preparing the appeal, which resulted in delay in filing the same.
5. The application was contested by respondent No. 1 herein by filing her
reply. In her reply, respondent No. 1 contended that the medical record
annexed with the application depicts that petitioner No. 2 was discharged
from hospital on 28.06.2024, which is more than one year prior to filing of
the appeal and there was no medical record to show that petitioner No. 2
was unable to travel on account of his ill health. It was also contended that
the medical record annexed with the application is contrary to the
pleadings.
CRM(M) No. 201/2026 Page 2 of 6

6. The learned appellate court, after hearing the parties and after analysing
the material on record, came to the conclusion that the application of the
petitioners does not disclose sufficient cause, which prevented them from
filing appeal within the prescribed time of limitation. Accordingly, the
application has been dismissed in terms of impugned order dated
12.02.2026.
7. The petitioners have challenged the impugned order on the grounds that
the learned appellate court has failed to appreciate the fact that petitioner
No. 2 had undergone surgery of L3, L4 and L5 and it was difficult for him
to even stand straight for at least six months. It has been further submitted
that petitioner No. 2 was required to undergo follow up treatment for over
three months, which constituted a sufficient cause for condoning the delay
in filing the appeal. It has been contended that the substantial justice
should always prevail upon technicality, but the learned appellate court
has taking a very technical and narrow view of the matter while
considering the application of the petitioners for condoning the delay in
filing the appeal. It has also been contended that there is a delay of only 54
days in filing the appeal, as such, the learned appellate court was required
to take a lenient view of the matter, while considering the application of
the petitioners.
8. Section 5 of the Limitation Act governs the condonation of delay for filing
an appeal. As per this provision, an appeal may be admitted after
prescribed period of limitation, if the appellant satisfies the court that he
had sufficient cause for not preferring the appeal or making the application
within such period. The expression “sufficient cause” must receive a
CRM(M) No. 201/2026 Page 3 of 6

liberal interpretation so as to advance cause of substantial justice rather
than blocking cases over minor technicalities. The test whether there was
sufficient cause for a litigant, which prevented him in approaching the
court within the prescribed period or limitation is, whether the litigant has
acted with due diligence. In case, it is shown that there is gross negligence
or lack of good faith on the part of the litigant, it would not constitute a
sufficient cause. It has to be borne in mind that the condonation of delay is
not guaranteed simply because delay is short or that the litigant has a
meritorious case. An application for condonation of delay has to be tested
on the basis of the validity of the explanation for the delay and not on the
basis of the length of delay or merits of the case.
9. The Supreme Court in the case of Thirunagalingam v Lingeswaran and
another, 2025 INSC 672 has, while analysing the legal position as
regards condonation of delay in filing of proceedings before the court,
held as under:
“31. It is a well-settled law that while considering the plea for
condonation of delay, the first and foremost duty of the court is
to first ascertain the bona fides of the explanation offered by the
party seeking condonation rather than starting with the merits of
the main matter. Only when sufficient cause or reasons given for
the delay by the litigant and the opposition of the other side is
equally balanced or stand on equal footing, the court may
consider the merits of the main matter for the purpose of
condoning the delay.
32. Further, this Court has repeatedly emphasized in several
cases that delay should not be condoned merely as an act of
generosity. The pursuit of substantial justice must not come at
the cost of causing prejudice to the opposing party. In the
present case, the respondents/defendants have failed to
demonstrate reasonable grounds of delay in pursuing the matter,
and this crucial requirement for condoning the delay remains
unmet.”

CRM(M) No. 201/2026 Page 4 of 6

10. In light of the aforesaid legal position, let us now turn to the facts of the
present case. The impugned order has been passed by the learned trial
Magistrate on 11.04.2025. The appeal came to be filed by the petitioners
along with application for condonation of delay before the learned
appellate court on 30.07.2025. The period of limitation for filing the
appeal under section 29 of the DV Act is 30 days. Thus, the appeal is
admittedly delayed by more than one and half months. The explanation
tendered by the petitioners for filing the appeal belatedly is that petitioner
No. 2 had undergone surgery and he could not travel for Jammu for
appending his signatures on the documents, to be filed before the court. To
support his contention, petitioner No. 2, has placed on record medical
record. As per the medical record, petitioner No. 2 had undergone surgery
on 24.06.2024, whereafter he was discharged from Sir Ganga Ram
Hospital, New Delhi on 28.06.2024. The petitioner No. 2 has also placed
on record other medical record, which shows that he has undergone follow
up treatment at Delhi during the months of June, 2024 and September,
2024. However, petitioner No. 2 has not placed on record any medical
record to show that he had been undergoing treatment in connection with
any kind of ailment during the year 2025. Therefore, there is no material
on record to support the assertion of the petitioners that petitioner No. 2
was suffering from ailment of such a serious nature as would have
prevented him from travelling to Jammu for the purpose of signing
documents, to be filed in the court.
11. The appellate court, while noticing these aspects of the matter, has rightly
come to the conclusion that the petitioners have remained knowingly
CRM(M) No. 201/2026 Page 5 of 6

negligent and silent over the matter and have taken refuge under surgery
of applicant No. 2 (petitioner No. 2 herein), which he had undergone more
than a year before filing of the appeal. It has also been noted by the
learned appellate court that in fact, the memo of appeal has been signed by
applicant No. 1 (petitioner No. 1 herein) and not by applicant No. 2. Since
petitioner No. 1 was not suffering from any disability, as such, the
petitioners cannot take refuge under the ailment of petitioner No. 2 for
explaining the delay in filing the appeal.
12. It is a settled law that the High Court while exercising its powers under
section 528 BNSS, would not generally interfere with an order passed by a
criminal court, unless the same is grossly erroneous and suffers from
perversity. In the present case, the impugned order passed by the learned
appellate court is neither perverse nor does the same suffer from any
illegality.
13. For all what has been said, analysed and discussed hereinabove, the
petition lacks merit and is dismissed accordingly.

(SANJAY DHAR)
JUDGE

Jammu
31.08.2026
Rakesh PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No




Rakesh Kumar
2026.09.07 09:43
I attest to the accuracy and
integrity of this document
Jammu
CRM(M) No. 201/2026 Page 6 of 6