1979 PLP 694 (CLC)

3. According to law, appeal before the District Judge. was to be filed within thirty days while 49 days were spent in obtaining certified copies of the judgment and decree. The said period is liable to be excluded while computing the period of limitation. If certified copies were notified by the Copying Agency to be delivered on 27-9-1968, then according to law, limitation would run from that date irrespective of the fact whether the copies were ready on 20-9-68. As held in Muhammad Bakhsh v. Nizam Din (P L D 1978 Lab. 31) under High Court Rules and Orders, Vol. I, Chapter C, rule 7.22, Copying Agency is bound to intimate to the applicant about the date on which the copy would be prepared and delivered. In case no such date is intimated then the applicant would be entitled to deduct the time spent from the date of application to the date of delivery of the copy. In the present case, according to the endorsement made by the Copying Agency, date for delivery of the copies was notified to the appellant to be 27-9-1968 while the copies were ready for delivery on 20-9-1968. The question which arises for consideration is as from which date limitation would be computed.

4. The learned Additional District Judge while rejecting the appeal being time-barred has computed the period of limitation till 20-9-1968, the date on which the copies were ready for delivery. The view as taken in the aforesaid case was also taken in Kala v. Allah Dad (P L D 1977 Lah. 376). In that case the District Judge decided the appeal on 29-1-64 while the appellants applied for copy of the judgment and decree on 7-3-1964 and the copies were ready on 7-4-1964. The appeal on these facts was time-barred. It was, however, contended that the appellants were entitled to deduction of time not up to 7-4-1964, when the copies were ready, but up to 25-4-1964, when they were actually delivered, for the reason that they had not been given any date by the Copying Agency for their delivery. It was held, while relying on Gul Muhammad v. Allah Dina (P L D 1960 Lah. 443) that appellants in such circumstances were entitled to deduct the period up to 25-4-64. It was held in P L D 1960 Lab. that time "requisite" for obtaining copies which could be excluded under section 12 of the Limitation Act was the time which was taken between the date of application and the date when the copies were ready, but it could be further extended if further delay took place by reason of the carelessness of the Office in giving information to the applicant as to the date on which copies would be ready or giving nI information, at all.

5. In the present case, if 27-9-.1968 had beefs notified to the appellant to be the date for delivery then, as held in the above-cited case, limitation period would be computed from that date and not from 20-9-68, irrespective of the fact that copies of the judgment and decree were ready for deliver on that date. When a particular date has been notified by the Copying ,Agency for delivery of a copy, then the applicant would be obliged to visit the Office on that date. If such copy has been prepared on a date not intimated or earlier than the date so notified to the applicant, then limitation would not be computed from that date, that being not the notified date. Similar view was taken by me in Muhammad Din v. Ch. Muhammad Siddigue (P L D 1976 Lah. 802). In that case, copy was not ready for delivery on the date which had been notified by the Copying Agency. It was held that according to law if no date was given by the Copying Agency for delivery of the copy then it was its duty to inform the applicant after its preparation. In that case the limitation would be computed from the date of delivery of the copy. However, if a specific date was given by the agency for delivery of the copy then it was obligatory for the applicant to visit the office of the agency for taking its delivery and to the case of its non-delivery further time was to be extended and the applicant was obliged to visit the office of the agency on the date so notified.

6. According to High Court Rules and Orders, as amended by correction pamphlet No. 39, dated 3-6-1959, the date communicated to the applicant for taking delivery of the copy or the date on which it would be ready for delivery, whichever is later, would be deemed, for the purpose of such calculation, to be the date on which it would be given.

7. The learned Additional District Judge has not held any inquiry and probe as to whether date 27-9-1968 was notified by the Copying Agency to be the date for delivery of copies of the judgment and decree. He has merely relied upon the date being 20-9-1968 when copies of the judgment and decree were shown to be ready for delivery. As discussed above, if 27-9-68 had been notified to the appellant for delivery of the aforesaid copies, then the appellant was not obliged to visit the office of the agency on 20-9-1968 to take delivery of the copies. For the purpose of inquiry and probe relevant register showing entries with regard to date having been notified for delivery of the aforesaid copies should have been called for and examined. This is necessitated in view of the fact that date 20-9-68 as given on certified copy of the decree for delivery purposes was changed to 30-9-1968, without even being initialled by the official concerned.

8. If the Copying Agency did not specify any date to the appellant for delivery of the copies and actually delivered the copies on 20-9-68, then the appellant would be entitled to the deduction of period from the date of the application to the date of delivery of the copies. However, if some date was specified then period of limitation would be till that date irrespective of the fact that the copes were ready for delivery earlier. Since the matter has become doubtful on account of cutting/change in the date of delivery, as given on the copy of the decree, therefore, it requires inquiry and probe. If it is found by the learned District Judge after holding due inquiry and probe and after hearing the parties that 27-9-1968 had been duly notified to the appellant for delivery of the copies then the appeal being within time would be liable to be disposed of by him on merits.

9. The learned counsel for the respondents has contended that the second appeal filed against the judgment and decree of the learned lower appellate Court, passed on 10-9-1969 being time-barred is liable to be dismissed on this ground alone. Application for supply of certified copy of the aforesaid judgment was filed on 16-10-69. It was complete on 26-11-1969 but was delivered on 28-1,1-69. The appeal was filed on 12-1-1970. It was not accompanied by certified copy of the judgment of the learned trial Court and as such was returned by the office being incomplete with a direction for filing the same within a week. However, it was re-filed, alongwith judgment of the trial Court, on 26-2-1970.

10. The record shows that application for supply of certified copy of trial Court's judgment was made on 31-12-69, after the expiry of three months' per iod when the judgment was delivered by the trial Court on 10-9-69. The copy was prepared on 6-1-70, it was completed on 4-2-70 and delivered on 7-2-70. As mentioned above, the appeal was, however, re-filed on 26-2-70.

11. The main question to be examined while deciding this aspect of the case is whether by filing certified copy of the judgment of the trial Court on 26-2-70, after lapse of due date, as fixed by the High Court, the appeal would be hit by the provision as contained in section 12 of the Limitation Act. Subsection (2) of this section relates to computation of period of limitation prescribed for appeal, an application for leave to appeal and an application for review of a judgment. It has been prescribed that the date on which the judgment complained of is pronounced and the time requisite for obtaining copy of a decree, sentence or order appealed from or sought to be reviewed shall be excluded. Subsection (3) of the section provides that 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 be excluded. A bare reading of section 12 of the Limitation Act would show that its scope does not extend to obtaining copy of judgment of the trial Court as held in Kala v. Allah Dad (P L D 1977 Lah. 376). It has been held that section 12 provides only for deduction of the time spent in getting copies of the judgment and decree of the lower appellate Court. The view taken in Muhammad Afaal v, Islamic Republic of Pakistan (P L D 1968 Lah. 1205) has been followed in P L D 1977 Lah.

12. The facts of the case as reported in P L D 1968 Lah. are that after allowing the time spent in obtaining copy of the order of the learned District Judge limitation stood extended uptil 22-9-58 on the date on which the appeal was filed in the High Court. However, it was not accompanied by the copy of the judgment of the trial Court as required by Order XLII, rule 2, C. P. C. as added by the Lahore High Court. The appellant in that case hail applied for supply of such copy on 18-8-58, before he filed his appeal in the High Court, and it was delivered to him on 17-10-1958. However, he filed aforesaid copy in the High Court on 6-11-1958. He filed an application, as in the present case, under section 5 of the Limitation Act praying that he may be allowed the time spent by him in obtaining copy of the trial Court's judgment. It was contended before the High Court that since filing of copy of the judgment of the trial Court was required by the High Court itself for its own satisfaction under rule 2 of Order XLII, C. P. C. and not otherwise required by any provision of the Limitation Act, therefore, appeal on that ground could not be dismissed being time barred. This plea was accepted by the High Court and time spent in obtaining copy of the trial Courts' judgment and the delay in filing the same was condoned.

13. In the present case, it is admitted that copy of the trial Court's judg ment was delivered on 7-2-70 while it was filed in the High Court on 26-2-70. An application has been made by the appellant under section 5 of the Limita tion Act read with section 151, C. P. C. for condonation of delay in filing copy of the trial Court's judgment. It has been averred in the affidavit of Muhammad Nazir Rana, Clerk of the Municipal Committee, annexed with the application, that the fact that the appeal was returned being incomplete on account of not being accompanied by copy of the trial Court's judgment was never brought to the notice of the counsel for the appellant, late Ch. Muhammad Sharif Alan, who was a practising lawyer at Sialkot. The Office never intimated even to the appellant or its counsel that the appeal being incomplete was to be refiled within a week. It has been averred in the affidavit that as soon as the counsel came to know about this fact he filed copy of the judg ment of the trial Court on 26-2-70.

14. It is, however, admitted on record, as mentioned above, that application for supply of copy of the trial Court's judgment was made within time during which appeal could be filed, after adding the time spent in obtaining certified copies of the judgment and decree passed by the learned lower appellate Court to the statutory period of ninety days. There is no doubt that filing of copy of the trial Court's judgment is necessary, as required by Order XL1i, rule 2, C. P. C. The question which arises for consideration is as to which provision of the Limitation Act would be applicable in dismiss ing the appeal as time barred if the aforesaid copy is not filed within the time fixed by :he High Court. As mentioned above, there is no such provision in the Limitation Act. The scope of section 12 of the Limitation Act cannot be extended to the filing of the aforesaid copy. The provision of rule 2 of Order XLII, C. P. C. has been added by the High Court for its own convenience so as to enable itself to examine the merits of the case in the light of the judgment of the trial Court. It is significant to notice that filing of copy of the judgment of the trial Court is required by rule 2 of Order XLI1, and not the copy of the decree of that Court, because the same does not throw any light on the merits of the case.

15. That being the position, I am in respectful agreement with the view taken in P L D 1968 Lah. and P L D 1977 Lah. 1205 and am of the view that in the peculiar circumstances of the present case, sufficient cause has been brought on record by the appellant for condoning the delay caused in filing copy of the trial Court's judgment. It is true as required by rule 2 of Order XLII. C. P. C. copy of the judgment of the trial Court should be filed within a reasonable time, after having been obtained, since its filing is mandatory and it cannot be kept by a party after having been delivered for an unreason able time. Appeal however in that case may be liable to be dismissed for non-prosecution and not being time barred. In view of the explanation furnished by the appellant in the present case in the application under section 5 of the Limitation Act, sufficient cause has been furnished for not filing the copy immediately after it was delivered on 7-2-1970.

16. In this view of the matter, the second appeal does not suffer from the defect as suggested by the learned counsel for the respondents. However, in view of the findings given on the first point, the judgment and decree passed by the learned Additional District Judge, Sialkot is hereby set aside. The case is remanded to the learned District Judge, Sialkot for its decision in accordance with law and in the light of the observations made above. The appeal is accepted without any order as to costs. M A. K. Appeal accepted.