BALU Vs. DEVI

JUDGEMENT

(1.) 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. 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: - -