RATNA MANJARI DAS Vs. BHASKAR CHANDRA DAS

JUDGEMENT

(1.) The sole point for consideration in this civil revision is as to when limitation will run when a court of appeal has ordered return of the memorandum of appeal to be presented in the proper forum arising in the following circumstances: The husband-opposite party had filed a suit (O. S. No. 12 of 1969) under Section 13 (1) (v) and Section 10 (d) of the Hindu Marriage Act, 1955 (Act 25 of 1955) for annulment of his marriage with the petitioner, or in the alternative for a divorce or for judicial separation on the ground that the wife was suffering from Venereal disease in a communicable form, the disease not having been contacted from the husband-opposite party. The main issue in the suit was No. 4 and finally the trying Court held that-

(2.) According to the learned Counsel for the petitioner, even if the pendency of the appeal in the High Court is excluded under Section 14 of the Limitation Act, yet a period of twenty days remains unexplained. But according to the opposite party-husband, he having taken return of the memorandum of appeal on 20-31978 and having presented it before the proper forum, that is, the District Judge that very day, there was no delay at all. Hence the question for consideration is if there has been any delay in presenting the appeal before the District Judge or not.

(3.) Admittedly the High Court by its order dated 27-2-1978 had ordered return of the memorandum of appeal and presentation before the proper forum as quoted above. Further in view of the observation of the High Court it would be held that the husband-opposite party (appellant) was pursuing his remedy with due diligence in the High Court and so he will get the benefit of Section 14 of the Limitation Act till 27-2-1978. But the further delay on the part of the husband-opposite party m taking back the memorandum of appeal from the High Court and presenting it before the District Judge on 20-3-1978 has to be explained and that the appellant had done that by filing an application under Section 14 read with Section 5 of the Limitation Act, the material paragraphs of which have already been quoted, as also the reasoning of the learned District Judge in condoning the delay, the propriety of which has to be judged.