- (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: - - "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. 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.;