2001 PLP 525 (MLD)

BASHARAT AHMAD SHAIKH, J.‑‑‑A suit for cancellation of gift deed was filed by respondent Muhammad Hamid and Muhammad Rashid. The suit was dismissed by Sub‑Judge Samahni on 29th October, 1998. Appeal was filed before the District Judge on 28th January, 1999. The appellant, Muhammad Amin, moved an application praying that the appeal may be dismissed because it was time‑barred by one day. Thereupon, the respondents moved an application for condonation of delay under section 5 of the Limitation Act. The learned District Judge accepted the objection about limitation and dismissed the appeal on 31st May, 1999. Second appeal before the High Court was filed by the respondents: The High Court has set aside the judgment of the District Judge by holding that the appeal filed by the respondents before the District Judge was within time. The learned Judge held that one day spent in obtaining the certified copies was to be excluded.

2. The trial Court passed the judgment on 29th October, 1998. The prescribed limitation under the amended law is 90 days. As would be clear from the following table, 27th January was the ninetieth day. October 2 days. November 30 days. December 31 days January 27 days. 90 days However, appeal was filed on 28th January. The High Court has accepted the plea raised by the respondents that the appeal was within time after counting one day which was spent in obtaining certified copies. The certified copies, on an application moved on behalf of the plaintiff‑appellants, were received by them on November 28th, 1998. The case has been remanded to the District Judge for decision on merits. The High Court has relied on a judgment of this Court titled Income Tax Officer and others v. Ch. Muhammad Bashir decided on 23rd November, 1993.

3. Muhammad Amin has filed this appeal with leave of the Court to challenge the judgment of High Court. The contention of the learned counsel for the appellant, Ch. Muhammad Sharif Tariq, is that the respondents took 91 days in filing the appeal which was time‑barred because one day is claimed to have been spent in obtaining the certified copies would not be deducted. He contended that only time actually spent in obtaining certified copies can be deducted but in present case copies were supplied on the same day on which the application for obtaining the said copies was filed, therefore, it could not be validly claimed that the whole day was spent in obtaining the copies. In order to appreciate the arguments section 12 of the Limitation Act may be reproduced:‑‑ "(12)Exclusion of time in legal proceedings (1) In computing the period of limitation prescribed for any ‑suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. (4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. " Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, submitted that‑it is provided in subsection (1) the day from which the time is to be reckoned is to be excluded and in opening part of subsection (2) it is provided that the day on which the judgment complained of was pronounced shall be excluded but in the provisions about obtaining a copy of the decree etc., in subsections (2), (3) and (4) the word "day" has not been used and instead "time requisite" has been used. According to the learned counsel the clear effect of this provision of law is that only the actual time which has been consumed in obtaining a certified copy has to be excluded and not the whole day. The learned counsel submitted that application for obtaining certified copy was made on 28th November and the copies were supplied on the same day. Therefore, full one day was not consumed in obtaining the copies and that could not be excluded. According to the learned counsel limitation expired on 27th January, 1999. The learned counsel relied on Mahboob and another v. Muzaffar Din (1992 SCR 338), Messrs Pak‑Libya Holding Company (Pvt.) Ltd., v. Bashir Ahmed Memon (1999 MLD 2132), Leha' Khan and others v. Amir Hamza and others (1999 SCMR 108), Syed Jalilur Rehman and 7 others v. Mst. Rashida.Begum and 10 others (PLD 1978 Kar. 105) and Fateh Muhammad and others v. Malik Qadir Bakhsh (1975 SCMR 157).

4. The learned counsel for the respondent, Raja Hassan Akhtar, submitted that the plea raised by the learned counsel for the appellant that the period of limitation expired on 27th January is factually incorrect because one more day which was spent in obtaining the certified copy was also to be excluded. Therefore, according to Raja Hassan Akhtar, limitation expired on 28th January. 1t was further submitted by the learned counsel that there is no concept of bifurcating a single day in two parts as was being canvassed by Ch. Muhammad Sharif Tariq. The learned counsel for the respondents relied on Mst. Jamila Khatoon and another v. Mst.. Tajunnisa and others (PLD 1984 SC 208), Rehmat Bibi and 4 others v. Ghazanfar Hussain and another (PLD 1983 SC (AJ&K) 25) and Andleeb Sahir Butt v. Raja Naveed Hussain and 2 others (2000 SCR 57). In Mahboob's case, relied upon by Ch. Muhammad Sharif Tariq, petitioner, Mahboob's leave to appeal was dismissed by this Court after observing as follows:‑‑ . "The perusal of the copy of the relevant order of the High Court reveals that the application was submitted on 26‑10‑1991 and the copy was delivered to the petitioner on the same day; similarly the copy of the order of the trial Court was also issued on the very day when the application for issuing the same was filed. Thus, no period for obtaining the copies of the relevant orders can be deductible from the period of limitation". Pak‑Libya Holding Company's case was a case under the Rented Premises Ordinance, 1979. Eviction order was passed by Rent Controller on 7th April. The tenant applied for certified copy of the order on 22nd April. Attested copy was trade ready on 24th April but the tenant supplied the stamps and received the certified copy of 8th May. It was held by the Sindh High Court that appellant had avoided to deposit the stamps for such a long time and was, therefore, guilty of committing wilful delay. This case has no relevance for the purposes of the present case. In Lehar Khan's case facts were that a petition for leave to appeal before the Supreme Court of Pakistan was barred by 21 days. The condonation was sought on the ground that the copying agency did not intimate that the copy was ready nor was it intimated that its delivery tray be taken. It was held by two Judges that there was no document on the record to prove that petitioner was not intimated by the copying agency as to the date when the certified copy was ready. Another point to which the learned Judges adverted was that it was alternatively argued before the Court that period of limitation was expired during the summer vacation. This argument was repelled on the ground that during the summer vacation offices of the Supreme Court remained open to receive petitions. This judgment has no bearing on the point involved in the case.

5. The learned single Judge of the Karachi High Court followed the observations made in Fateh Muhammad and others v. Malik Qadir Bakhsh (1975 SCMR 157) wherein it had been held that the time requisite for obtaining the copy of an order under section 12 of the Limitation Act means "the interval between the date of application for supply of copy and the date when it is ready for delivery": It was further observed by the Supreme Court that even during the period covered by section 12 of the Limitation Act due diligence on part of the litigant is required by law. The facts of Fateh Muhammad's were that petition for leave to appeal was time‑barred by 41 days. Explanation for the delay was that the petitioners were not informed of the date.

6. From the phraseology of subsections (2), (3) and (4) of section 12 of the Limitation Act, which have been reproduced above, time requisite for obtaining a certified copy has to be excluded. As explained by the Supreme Court of Pakistan in Fateh Muhammad's case, discussed above, time requisite for obtaining the copy means "the interval between the date of application for supply of copy and the date when it is ready for delivery." It was thus laid down that the said interval was to be excluded. It was not laid down that the said interval has not been excluded as has been canvassed by Ch. Muhammad Sharif Tariq. The same view was expressed in Civil Appeal No.81 of 1992 titled Income Tax Officer Mirpur v. Ch. Muhammad Bashir decided on 23rd November, 1993. In that case application for obtaining copy was filed on 20th of June and the copy was made available on 27th of June. Eight days which were consumed in taking out the copy were excluded. However the petition for leave to appeal was dismissed by this Court in Mahboob's case, mentioned above, by holding that no period for obtaining copies could be deducted from the period of limitation because copy was supplied on the date on which the application was made. It appears that this judgment was pronounced in peculiar circumstances of that case and does not apply to the facts of the present case.

7. The view that if the application for obtaining the copy of the judgment etc. ; is made and the same is supplied on the same day one day is to be excluded while computing the limitation, also finds support from Sitaram v. Shaikh Saidar (AIR 1917 Nag. 197), Dipchand Kundanmal Marwari and others v. Manakchand Muhltanmal Marwari and others (AIR 1939 Nag. 154), Syed Yusuf Zaman v. Roshan Ali and 3 others (1970 SCMR 59) and Shafqat Hussain Shah v. Sakina Begum and others (1987 CLC 664).

8. We do not rule out the possibility that if a copy is supplied on the same date on which it is applied for only a part of the day may be consumed but the concept of bifurcating a single day in two parts has not so far been accepted by any superior Court; nor it has been proved that the whole day was not consumed in obtaining the copy. In light of the foregoing discussion the view taken by the High Court is correct and‑we uphold it. The appeal is, therefore, dismissed. H.B.T./135/SC(AJ&K) Appeal dismissed,