Balu v. Devi — 1955 DIGILAW 134 (RAJ)

This is an appeal against an appellate decision of the Additional Commissioner, Udaipur, dated 28-9-54 whereby the appellants first appeal filed before him was held as being barred by limitation. 2. We have heard the learned counsel appearing for the parties at length and have examined the record as well. Put briefly, the facts of the case are that Devi plaintiff brought a suit against Bhairu defendant for recovery of possession over the land in dispute on 12-6-48 in Adalat Dewani, Shahpura. On the promulgation of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, the suit was transferred to the court of the S.D.O. Shahpura, who granted a decree in favour of the plaintiff on 24-2-54. The defendant applied for a copy of the judgment and decree on 2-3-54 and the same were granted to him on 31-3-54. The appeal was presented by Shri Yaswant Singh counsel before the Collector, Bhilwara, on 26-4-54. On 29-4-54, the office of the Collector reported, and rightly too, that the appeal should have been filed before the Commissioner and op that very day it was ordered that the memorandum of appeal be returned to the appellants counsel through S.D.O. Shahpura. The S.D.O. forwarded the papers to the Tehsildar Shahpura and ultimately Shri Mohan Singh received them on 10-6-54. The appeal before the learned Additional Commissioner was filed on 3-7-54 who held the same to be beyond limitation. Hence this second appeal. 3. The learned Additional Commissioner has held that the appellant can get extension only up to 29-5-54 and even if extention be allowed to him till 10-6-54 the appellant had no justification for losing 23 days even after that period and filing his appeal on 3-7-54. He has mainly relied on A.I.R. 1948 Madras 26. The respondents counsel has cited before us some other rulings as well. In A.I.R. 1948 Madras 26, it was held that the plaintiff is entitled to claim exclusion of time under sec. 14 till the date of endorsement on the plaint under order 7, Rule 10 C.P.C. and not thereafter, except perhaps where he can show that the court delayed the return of the plaint inspite of his endeavour to take it back. If the plaintiff allows some time to elapse before he actually takes back the plaint, such time cannot be excluded. If the plaintiff allows some time to elapse before he actually takes back the plaint, such time cannot be excluded. It would, therefore, be wrong to interpret this decision to mean that in no case period after the endorsement is to be excluded under sec. 14. In fact it was observed in the decision itself that there may be circumstances where such an exclusion may be justifiable, such as where the court delayed the return of the plaint in spite of the plaintiffs endeavour to take it back. The law on the point has been further elucidated in A.I.R, 1954 Allahabad 199. It was observed therein that:— "While in majority of cases the period right up to the date of actual return of the plaint should be excluded, it cannot be held as a hard and fast rule applicable to all cases that exclusion should extend upto the date of the actual return of the plaint." The period shall very according to the circumstances of each case. It was pointed out by his Lordship that after an order for the return of plaint is passed certain formalities had to be gone through in the office before the plain can be returned. The necessary particulars provided in Order 7, Rule 10 were to be endorsed and entries had to be made in registers prescribed for the purpose. Office may take several days forgoing through all these formalities as the actual period required for the observance of all these formalities will depend upon the amount of volume of work in each office. Under such circumstances, period right up to the actual return was to be excluded. As instances of the proposition contrary to that laid down above, it was pointed out that the plaintiff may feel dissatisfied with the order, that he may be contemplating an appeal or may refuse to accept the plaint when offered to him by the office. A refusal may continue for months together. In such cases it,would not be proper to hold that the period up to the date of actual return should be excluded. In that case there; was nothing to indicate that the plaintiffs had refused to take back the plaint when tendered to them by the Office or that they were in any way responsible for the delay in the actual return of the plaint. In that case there; was nothing to indicate that the plaintiffs had refused to take back the plaint when tendered to them by the Office or that they were in any way responsible for the delay in the actual return of the plaint. It was, therefore, held that the period right up to the date of actual return should be excluded from computation. The facts of the present case are much akin to those of this ruling. In the present case we find that the Collector directed the return of the memorandum of appeal to the appellants counsel through the S.D.O. who in turn forwarded the papers to the Tehsil. It is, therefore, clear that the appellant or his counsel were never offered the memorandum of appeal by the office of the Collector, which selected a different medium for the return. Under the circumstances the responsibility for belated return, if it could be considered belated, can in no way rest upon the appellant. 4. We may refer briefly to some rulings cited by the learned counsel for the respondent in this connection. In 1923 A.I.R. Lahore 208, the decision appealed against was dated 20th June, 1921 Copies of the decrees were applied for on 27-6-21 and were received by the appellant on 9-7-21. The appeal itself was filed on 4-10-21 and was return on the same date on the ground that it was not accompanied by a copy of the judgment of the trial court The appellant appeared to hive done nothing further in the matter till 26-10-21 when he applied for a copy of the necessary judgment which was ready on 31st of the month and was actually delivered on 7-11-21. The appeal was then defiled on 22-11-21. It was held that even allowing for the fact that Kangra is at some distance from Lahore and the parties are Jats, this delay is unwarranted and time cannot be extended. In A.I.R. 1927 Lahore 717, it was observed that the appellant to obtain the benefit of sec. 5 should explain the delay for every day that elapsed beyond the period allowed by the Limitation Act. In A.I.R. 1940. Calcutta 530, the appeal was filed with a deficit court fee and in default of payment of the balance, in the appeal was rejected and it was held that the appellant is not entitled to any indulgence under sec. 5 should explain the delay for every day that elapsed beyond the period allowed by the Limitation Act. In A.I.R. 1940. Calcutta 530, the appeal was filed with a deficit court fee and in default of payment of the balance, in the appeal was rejected and it was held that the appellant is not entitled to any indulgence under sec. 5 on the ground that the pleaders are expected to make, themselves acquainted with the nature of the orders, passed and it is not the duty of the court to send records to the pleaders to obtain their signature on the order sheet. In A.I R. 1945, Oudh 94, it was observed that the discretion exercised by the lower appellate court in admitting or rejecting the application for condonation of delay under sec. 5 shall not be interfered with unless it violates judicial principles. In 1950 (A.I.R.) Rajasthan 2, it was observed with every wrong advice given by the counsel will not amount to a sufficient cause entitling the appellant to claim indulgence under sec. 5. It will amount to sufficient cause when the advice is given bonafide. But if it is due to the negligence or gross want of legal skill, the mistake cannot be held to be a bonafide mistake. All these decisions are of little or no bearing upon the present case. What appellant seeks here is not an extension of time prescribed for appeal, but exclusion of the period spent by him in prosecuting bonafide his appeal before the Collector. It is true that this section applies in terms to suits and applications and does not include an appeal, but, as held by the Privy Council in AIR 1917, P.C., 156 the circumstances contemplated in this section may be ordinarily taken to constitute a sufficient cause within the meaning of sec. 5 of the Act. In AIR 1953 Himachal Pradesh 110, it was observed that the principle of sec. 14, is applicable by analogy to appeals also to ascertain sufficiency of cause for extension of period under sec. 5. 5 of the Act. In AIR 1953 Himachal Pradesh 110, it was observed that the principle of sec. 14, is applicable by analogy to appeals also to ascertain sufficiency of cause for extension of period under sec. 5. What constitutes due diligence and good faith was examined in AIR 1953, Himachal Pradesh 15, and it was held that it would be unfair on the face of it to expect a degree of good faith from a party who is forced from the specialised nature of the task to engage a counsel, than if he was acting by himself specially where he has acted with due care and attention in engaging a qualified practitioner. In that case the appellants were given a wrong advice by their counsel to file the appeal in a wrong court. It was held "It was no doubt a foolish mistake and one which a Counsel of Shri Amar Chand Suds standing should not have committed. And yet it is nothing more than a honest mistake." 5. Thus looking to the circumstances of the case, we hold that the appellant is entitled to exclusion of the period from 26-4-54 to 10-6-54. 6. The next question, therefore, is as to whether any period after 10-6-54 can be allowed or not. AIR 1935 Oudh, 444 provides a complete answer to the question. In that case the suit was filed in a court at Kanpur on 15-5-34 on the basis of a pronote dated 5-6-31. That court ordered return of the plaint on 7-7-34, but the plaint was actually returned on 18-7-34 and was presented in the competent court on the next day. The lower court was of the opinion that as the plaintiff did not get back the plaint from the Kanpur court immediately after it was ordered to be returned to him and presented in the Unao court 12 days after that order, he should not claim the benefit of sec. 14. This meant that the trial court would have given him the advantage if he had not been negligent. The High Court held that as the period of limitation was extended by sec. 14, the suit was within limitation. It was observed therein that the suit remained pending in the Kanpur court from 15-5-34 to 7-7-34 i.e. for 53 days and thus the suit could have been instituted within three years and 53 days. The High Court held that as the period of limitation was extended by sec. 14, the suit was within limitation. It was observed therein that the suit remained pending in the Kanpur court from 15-5-34 to 7-7-34 i.e. for 53 days and thus the suit could have been instituted within three years and 53 days. By applying this principle, it would be found that the appeal should, have been presented within 60 days of the prescribed limitation plus 29 days required for obtaining a copy plus 45 days during which the appeal remained pending in the Collectors Court, which would give a total of 134 days, The appeal was actually filed within 129. days. It is, therefore, clearly within limitation. We would, therefore, allow this appeal, set aside the order of the lower appellate court and direct that the appeal filed before it be readmitted and disposed of on merits in accordance with law.