1995 PLP 1830 (CLC)

(d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑Ss. 96 & 115‑‑‑Limitation Act (IX of 1908), S. 4‑‑‑General Clauses Act (X of 1897), S. 10‑‑‑Limitation for filing appeal expired on date when Court was closed for holidays‑‑‑Appeal filed on next day of re‑opening of Court was dismissed as being time‑barred‑‑‑Such appeal having been filed within limitation in terms of S. 4, Limitation Act, 1908, and S. 10, General Clauses Act, 1897, same was restored and sent back to Appellate Court for decision afresh on merits. Rustam Khan Kundi for Petitioner. Muhammad Saleem Khan Gandapur for Respondent. Dates of hearing: 23rd and 26th February, 1995. I propose to dispose of these three civil revision petitions as a similar question of law involved in all the three petitions.

2. The petitioner instituted three different suits against three different defendants‑respondents and in each of them he prayed for a decree for recovery of certain amounts. The suits were dismissed by the trial Court by a short order holding that the suits were not maintainable. The plaintiff-petitioner filed appeals against the said judgments and I the appellate Court held as time‑barred against approached this Court for the redress of his grievance.

3. The judgments and decrees of the trial Court are of 23‑2‑1993 and the period of 30 days prescribed by Article 152 of the Limitation Act expired on 25‑3‑1993. The petitioner made application for obtaining the certified copies of the judgments and decrees on 28‑3‑1993 on which date the certified copies were also delivered and on the next day i.e. 29‑3‑1993 he filed appeals. The learned appellate Court observed that the appeals should have been filed on or before 24‑3‑1993 and which were not filed accordingly and thus the appeals were held to be time‑barred.

4. The learned counsel for the petitioner contended that the Courts and offices were closed from 23‑3‑1993 because of Pakistan Day and from 24th up to 27th March, 1993 because of Eid‑ul‑Fitr holidays. In this respect he produced a copy of the notification dated 21‑3‑1993 of the Government of N: W.F.P. vide which 27th of March was also declared as festival holiday in addition to 24th up to 26th March, 1993. A copy of the order dated 21st March, 1993 of the Peshawar High Court, Peshawar also showing that 27th of March, 1993 was declared as Eid‑ul‑Fitr holiday in addition to the notified holidays from 23rd to 26th March, 1993. This factual position i.e. of the holidays from 23rd up to'27th March, 1993 and the closure of the Courts and offices could not be converted. As noted above the petitioner could file an appeal up to 25‑3‑1993 and up to that date he could also file an application for obtaining the copies but he could not do it because of the closure of the Courts and offices from 23‑3‑1993 which he did on the very next opening day i.e. 28‑3‑1993. The time requisite for the obtaining copies was 28th as the date of application and delivery is one and the same day and which according to law i.e.. section 12 of the Limitation Act would be excluded. He fled the appeals on 29th the very next day available to him after excluding the period requisite for obtaining copies. According to section 4 of the Limitation Act when the period of limitation prescribed for any suit, appeal or application expires on day when the Court is closed the suit, appeal or application may be instituted, prefer or made on the day when the Court reopens. According to section 10 of the General Clauses Act, 1897 when any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day and within a prescribed period, then, if the Court or office is closed on that day or on the last day of prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. By reading these two provisions it would be clear that these enable a person to do what he could have done on holiday, on the next working day in other words where a period is prescribed for the performance of an act in a Court or office and that period expires on holiday then the act should be considered to have been done within the period if that is done on the next day on which the Court or office is open. This view was taken in an election petition case reported as Harinder Singh v. S. Karnail Singh (AIR 1957 SC 271).

5. The learned counsel for the respondent (in all the three cases) while relying on Ziaul Haq. v. A. Brabant (PLD 1962 (W.P.) Peshawar 21) and contended that when the period prescribed for filing an appeal expires during holidays and after the expiry of which the application for copies if submitted on next working day then filing of appeal, after obtaining certified copies, in Court on its next opening day would not bring the appeal within the prescribed period. It is, also not covered by section 4 of the Limitation Act as that provides for filing of the appeal, application etc. in the Court and not in the office and the appeal in the instant case was not filed on the 28th i.e. the next opening day but was filed on the 29th and thus this benefit i.e. provided under section 4 would not be available to the petitioner. But the facts and circumstances of judgment referred to by the learned counsel for the respondents (in cases) are quite different. In that case the period for ,filing of the appeal was going to expire on 19‑8‑1961 but because of the closure of the Civil Court the same could have been filed on 1‑9‑1961 the next opening day but the application for obtaining copy instead of submitting before 19‑8‑1961 was given on 31‑8‑1961 i.e. after the expiry of the period prescribed for filing of the appeal and it was not the case that even the application could not be submitted before 19‑8‑1961 and the very submission of application for obtaining of the copies on 31‑8‑1961 indicates that the offices were open and the same could have been filed even in the month of August and specially before 19‑8‑1961. But in the instant case here the offices were closed and even the application could not be submitted for obtaining the copies. In addition to this no reference has been made in the judgment to section 10 of the General Clauses Act presumably not brought to the notice of the Court. The principle of section 4 of the Limitation Act is analogous to that of section 10 of General Clauses Act which is more general in character than the former i.e section 4 of Limitation Act, by using the words act and proceedings instead of suit, appeal e or application and also the word office in addition to Court. It is general proposition of law that one should not be prejudiced by the act 'of the Court or may be said by the act of the office which is beyond the control of a person.

6. In consequence of the above discussion the revision petitions are allowed, and the appeals which had been dismissed by the Appellate Court treating them as time‑barred are restored, which are sent back to the Appellate Court to decide the same on merits. The appeals be entered on their original numbers. AA./1805/P Case remanded.