K.B. Panda, J.
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-
'18. Under the circumstances, when I fail to satisfy myself as required under Section 13 of the Hindu Marriage Act that the respondent was suffering from a disease like syphilis in a communicable form as alleged by the petitioner against her, no decree either under Section 10(1)(d) or under Section 13(1)(v) can be passed against the respondent and as such the petition for such a relief by the petitioner is not maintainable. These issues are answered accordingly.'
Consequently, the suit was dismissed by the learned Subordinate Judge, Cuttack on 10-11-1975 and a decree followed on 15-11-1975. The husband-opposite party preferred an appeal (First Appeal No, 43 of 1976) before High Court on 16-2-1976.
A Division Bench of this Court while disposing of the matter on 27-2-1978 observed as follows:
'11. 27-2-78. This appeal by the husband is directed against the judgment and decree of the learned Subordinate Judge of Cuttack dismissing his application for dissolution of marriage and in the alternative decreeing either divorce or judicial separation. In the memorandum of this appeal, it has been stated that the appeal is valued at Rs. 1.50 which was the valuation of the original suit. On verification of the record, we find that no such valuation had been put and this statement is a mistake. Yet, for the reasons indicated in our order dated 6-2-1978 in F. A. No. 83 of 1976 : (AIR 1978 Orissa 163) (Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak) along with which this appeal regarding maintainability had been heard, we hold, that in the absence of a valuation above Rs. 5,000/- in the memorandum of appeal, this appeal does not lie to this Court. We accordingly direct that the memorandum of appeal be returned to the filing advocate for presentation in proper Court.'
(Vide judgment D/: 27-2-78 in F. A. No. 43 of 1976)
The Advocate for the appellant took return of the memorandum of appeal on 20-3-1978 and the endorsement of the Deputy Registrar is thus:--
'Returned to the filing adv. for proper presentation in pursuance of Court's order No. 11 D/- 27-2-1978.'
Admittedly that very day, that is, 20-3-1978, the appeal was presented in the Court of the District Judge, Cuttack by the Advocate Shri B. Dagara with an application under Section 14 read with Section 5 of the Indian Limitation Act for condonation of delay. The two material paragraphs of that petition are as follows:--
'4. That the appellant has been prosecuting the appeal with due diligence in the Hon'ble Court in good faith that appeal is to lie to the Hon'ble Court against the original order passed under Hindu Marriage Act and subsequently it was found that the Hon'ble Court has got defect of jurisdiction/is unable to entertain the appeal.
5. That as the appellant was busy all along in his official works he was unable to come to Cuttack to instruct his Advocate to return the appeal memo from the Hon'ble High Court and to file the same before this Hon'ble Court.' When the question of limitation was raised on behalf of the wife-respondent (petitioner herein), the learned District Judge disposed it of in favour of the husband-appellant (opposite party herein) with the following findings:
'The contention of the appellant that the appeal was filed as per the practice prevalent prior to 1978 remains uncontroverted. As per the certified copy of the order dated 27-2-78 passed in F. A. No. 43 of 1976 the first appeal has been returned to the party for the reasons indicated in F. A. No. 83 of 1976 which was decided on 6-2-1978 : (AIR 1978 Orissa 163). Therefore the period during which the first appeal was pending before the Hon'ble High Court should be taken to be the period the appellant was prosecuting the appeal with due diligence in good faith and the period is to be condoned Under Section 14 of the Limitation Act. The appellant's contention is that he is a Government servant remaining outside Cuttack and therefore there was little delay in taking return of the appeal memo from the Hon'ble High Court and filing it in the District Court. According to him during the period he was busy all along in his official work. This statement of the appellant on oath is not controverted by any counter statement on oath. Admittedly the appellant is a Lecturer and his statement that he was busy cannot be disbelieved in the absence of any contrary material. The delay is only two months and odd and it can be condoned Under Section 5 of the Limitation Act as the appellant had sufficient cause for not presenting it within time.'
(vide Judgment D/- 11-9-78 of D. J., Cuttack in M. A. 26/78)
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 20-3-1978 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.
4. It was contended on behalf of the husband-opposite party that no duty is cast on the opposite party to take back the memorandum of appeal till an endorsement of the office for return of the memorandum of appeal (sic) is dated 20-3-1978, there has been no delay at all in presentation of the memorandum of appeal before the District Judge, that having been done on the same day. In support of this, Mr. Patra, learned Counsel for the husband-opposite party relied on Order 7, Rule 10 of the Civil P. C. Order 7, Rule 10 of the new Code as amended by Act 104 of 1976 is subject to the provisions of Rule 10A of Order 7, which postulates an application to be filed by the plaintiff for return of the plaint. The Explanation to Rule 10 (1) of Order 7 speaks that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint. Here the High Court has not set aside the decree passed in the suit and therefore the Explanation is inapplicable.
It was further contended by Mr, Patra on the basis of Section 107 of the Civil P. C. that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein and so the provisions made in respect of return of plaints as envisaged under Order 7 Rule 10, C. P. C. or under Order 7, Rule 10A, C. P. C. would be applicable to the instant case. As already indicated, Order 7, Rule 10 is subject to Order 7, Rule 10A and Rule 10A postulates-
'10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.
(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.
(2) Where an intimation is given to the plaintiff under Sub-rule (1), the plaintiff may make an application to the Court,--
(a) specifying the Court in which he proposes to present the plaint after its return,
(b) praying that the Court may fix a date for the appearance of the parties in the said Court and
(c) requesting that the notice of the date so fixed may be given to him and to the defendant.
(3) Where an application is made by the plaintiff under Sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,--
(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such date for appearance.
(4) Where the notice of the date for appearance is given under Sub-rule (3),--
(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and
(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under Sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.'
Evidently, Order 7 Rule 10A speaks of return of plaints only and lays down the manner in which it has to be done. Even if by analogy this is extended to cases of memorandum of appeals, it casts a burden on the appellant to take return of the memorandum of appeal and present it before the proper forum.
If Mr. Patra's contention is accepted, it would mean as if the burden lay on the High Court to run after the appellant for returning the memorandum of appeal. As soon as the Court expressed its view on 27-2-1978 that the memorandum of appeal should be filed before the District Judge, it was the duty of the appellant to 'take return' of the memorandum of appeal and present it before the District Judge. Evidently that was working in the mind of the appellant when he presented the memorandum of appeal before the District Judge on the 20th March, 1978 with an application for condonation of delay under Section 14 read with Section 5 of the Limitation Act. Therefore, the limited point for consideration is if the delay of 21 days, that is, from 27-2-1978 till 20-3-1978 can be condoned under Section 5 of the Limitation Act. True, the learned lower Court has accepted the grounds of delay, in the application of the appellant to the effect that he was busy in his 'official works' and so could not come to High Court to take return of the memorandum of appeal and that having not been controverted the plea of the appellant has been accepted. As the records show, the appellant-husband had been represented by lawyers. It was not necessary that he should personally come and take return of the memorandum of appeal. The affidavit filed by the husband-appellant shows that he is a resident of Vani Bihar, P. S. Sahidnagar, District Puri and as such is not a far off place from the seat of the High Court at Cuttack. Again as the High Court record shows it is his Advocate Mr. Dagara who has taken return of the memorandum of appeal. Thus, there was no difficulty on the part of the husband-appellant to instruct his lawyer to take back the memorandum of appeal and present it in the Court of the District Judge, Cuttack which is intervened by only a road. The vague allegation that he was 'busy all along in his official works' and as such was unable to come to Cuttack to instruct his Advocate can hardly be a sufficient ground for extension of time under Section 5 of the Limitation Act. As decided in AIR 1962 SC 361 Ramlal v. Rewa Coalfields Ltd. a right has accrued to the successful party which should not be tinkered with on flimsy grounds. Their Lordships have observed in this context thus:
'In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal.
It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it.
Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14.'
5. Mr. Patra, the learned Counsel for the husband-opposite party cited AIR 1963 Pat 407, Firm Pursottam Das Ganpati Rai v. Gulab Khan; AIR 1954 All 199, Ram Lakhan v. Mst. Tulsha, AIR 1961 Raj 162, Ramchandra v. Union of India; AIR 1971 Madh Pra 243, Brij Mohandas Gokulchand v. Narsinghdas Manoharilal and AIR 1971 234, Rikhab Pass v. Smt. Chandro in support of his contention that till the High Court office made the endorsement on 20-3-78 returning the memorandum of appeal time will not run as against his client. The first two cases, namely, AIR 1963 Pat 407 and AIR 1954 All 199 do not relate to the point at issue. So far as the Rajasthan case (AIR 1961 Raj 162) is concerned, it touches the question and decides it against the husband-opposite party in the following manner :--
'In cases where an order for return of the plaint for presentation to the proper Court is passed it cannot be laid down as a broad proposition of law that the proceedings come to an end within the meaning of Expln. 1 to Section 14 when the plaint is actually returned to the plaintiff. If some acts are to be done by the Court for the purpose of returning the plaint and it takes some time after an order for the return of the plaint is passed the proceedings will be deemed to be pending till that date, but it cannot be laid down as a hard and fast rule that the proceedings only come to an end when the plaint is returned to the plaintiff. If the proceedings are therefore kept pending by the plaintiff's own laches he cannot take advantage of the provisions of Section 14, Limitation Act. It is only for the period which is required by the Court for returning the plaint after an order has been passed in that behalf that the plaintiffs can claim exclusion.'
6. In the instant case, after the order had been passed on 27-2-1978, the Court had nothing to do with the memorandum of appeal and what had been endorsed by the Deputy Registrar is a clerical job mentioned as a token of having returned the memorandum of appeal to the appellant. In the case reported in AIR 1971 Madh Pra 243, the question was regarding return of plaint. In the facts and circumstances of that case it was held-
'No order was passed by the Shivpuri Court giving any direction to the plaintiff to act in any particular manner. On the contrary, it was the plaintiff who moved the Court on 22-4-1963 to return the plaint. The necessary copy was also filed by him on that very date and the plaint was returned. Thus, there were no laches on the part of the plaintiff and he was entitled to the period up to 22-4-1963 when the plaint was returned as till that date no endorsement was made by the Court on the plaint and the proceedings had not come to an end in that Court' But here, as already stated, the facts are entirely different.
The point decided in AIR 1971 All 234 also does not come to the assistance of the husband-opposite party. Therein, it has been held that- 'Time between date of order of return of plaint for its presentation in proper Court and date of such presentation is not counted for exclusion except for reasonable time spent for going to place of proper Court.'
Delay due to sickness is not also excusable. Here, as already indicated, the Court of the District Judge is just across the road where the High Court is situated and further the Counsel for the husband-opposite party was competent to take back the memorandum of appeal for presentation before the proper forum.
7. On an assessment of the facts of this case, I am unable to hold that the learned District Judge was correct in condoning the delay in filing the memorandum of appeal before it. As such, I would set aside the order of the District Judge and allow the civil revision, Hearing fee Rs. 150/- (Rupees one hundred and fifty only).