P L D 1967 Supreme Court 271 (PLP)

CORNELIUS, C. J.‑The facts in this appeal by special leave are as follows. The respondent Niaz Muhammad brought a suit against the Government of West Pakistan and other defendants, being officials, for a sum of Rs. 29,488 or such other sum as might be due on account of unpaid bills for services rendered by him in the capacity of a contractor. A preliminary decree was awarded by the First Class Civil Judge, Sukkur, on the 18th April 1963, and a Commissioner was appointed to take accounts. After the Commissioner's report had been received, and considered, a final decree for Rs. 26,731 with proportionate costs was awarded by a judgment announced on the 30th May 1964. It was added that "the final decree be prepared after collecting deficit Court‑fee stamps." The decree was prepared and duly signed on the 1st September 1964, after the deficit of stamp duty had been made up. The decree itself gives both dates, viz., the date of the judgment (30th May 1964) as well as the date of signature of the decree (1st September 1964). Appeal lay to the High Court and an application for certified copies of the judgment and decree was made on the 6th October 1964, that is one month and 5 days after the signing of the decree. The copies were delivered on the 9th October 1964 and the appeal was instituted in the High Court on the 28th November 1964, that is after the lapse of one month and 19 days. When the appeal came up for hearing, it was supported by an application under section 5 of the Limitation Act for extension of time, the principal ground given for the supposed delay being that counsel engaged in the case at Sukkur had advised that the appeal could be fled within 90 days from the 1st September 1964 and this advice had been supported by the opinion of a prominent and senior lawyer, Mr. Abdul Haque, practising at Lahore. The learned Judges held that the appeal was instituted out of time which they held began to run from the date of the judgment, and that no good reason had been shown for condoning the delay. They emphasised that after the signing of the decree, there was a delay of one month and five days before copies were applied for, and a further delay of a month and 19 days, before the appeal was tiled. They thought that there was negligence throughout the proceedings. As to the argument that the delay was due to relying upon "honest advice of counsel" they observed that the Advocate at Sukkur had been shown not to have been acting with full diligence, and it was the duty of the appellant, namely, the Government of West Pakistan "to take care that the appeal was to be filed by engaging a proper counsel." When first instituted, the appeal was not supported by any application for extension of time. Accordingly, the appeal was dismissed with costs. Special leave was granted by this Court to consider the correctness of the High Court's decision. Certain precedent cases have been cited in the judgment of the High Court, but it appears that the most relevant case on the subject, which had been decided by the Karachi Bench of the High Court in the year 1960, five years earlier, was not mentioned. This is the case of the East and West Steamship Company v. Queensland Insurance Company (P L D 1960 Kar. 840). The question examined by the Full Bench was practically the same as arises in the present case. There the judgment was delivered on the 12th February 1957, but the decree was signed on the lath June 1957. Application for a copy was made on the 12th August 1957 and copies being supplied on the 26th August 1957, the appeal was filed on the 12th September 1957. The point whether the period between the signing of the judgment and the signing of the decree should be allowed in favour of the appellant in calculating limitation had been referred to the Full Bench by a Division Bench of the Court. A large number of precedent cases were examined by the Full Bench, which came to the conclusion that those authorities, which favoured allowance of the time between the signing of the judgment and the signing of the decree, had not given full effect to certain basic factors. One such factor was that Order XX, rule 7, C. P. C., prescribes that the formal decree made out in a case should bear the date of the judgment. 1t was concluded from this that the law requires awareness and vigilance on the part of litigants from the time when the judgment is announced. The rule was intended to provide with certainty a point of time from which limitation should commence. The date of the decree is "known to every one the moment the judgment is pronounced." Since the preparation of the decree is a ministerial act, the date of the signing of the decree remains uncertain, but the date of the judgment is known with certainty. The argument that an application for a copy of the decree is meaningless, unless the decree has first been prepared was, in the view of the Full Bench, fallacious. This was said with reference to the provision in Article 156 of the Limitation Act, that time for tiling an appeal begins to run from the date of the decree. The learned Judges came to the conclusion that "a decree in the legal sense comes immediately into existence the moment a judgment is pronounced in a case" and for this purpose they relied upon the definition of the word "decree" contained in the Civil Procedure Code, namely, a "formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy." The further conclusion was recorded that "a decree in its essence is not a thing separable from the judgment." On the alternative view that a judgment and a decree are separate entities, the Full Bench observed that the preparation of a decree is a different thing from making an application for a copy of it. An application is within the power of a party to make and he may make it, even if no decree has yet come into existence. The learned Judges thought that the expression "time requisite for obtaining a copy" appearing in section 12(2) of the Limitation Act includes the time requisite for procuring preparation and signature of the decree. For this view, they appear to have placed reliance on a judgment of the Privy Council in the case of Surty v. Chetyar (A I R 1928 P C 103), from which a passage has been quoted, which runs as follows: "The word `requisite' is a strong word; it may be regarded as meaning something more than the word `required'. It means `properly required' and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default." In terms, these words, would not appear adequate to support fully the meaning placed upon them by the learned Judges of the Full Bench. Speaking with respect, in the view we take, it would require evidence to establish ‑that for any period of the delay between the signing of the judgment and the signing of the decree, responsibility should fall upon the person who desires to appeal therefrom. In the present case, it was for the plaintiff, namely, the contractor to make good the requisite stamp duty before the decree could be made out, and the defendant, namely, the Government of West Pakistan could hardly be held responsible for any part of the delay which may have resulted from the need to satisfy that requisite. Finally, the learned Judges of the Full Bench held that on a "plain" construction of the relevant provisions, namely, section 12(2) and Article 156 of the Limitation Act and Order XX, rule 7, C. P. C., the result followed that any part of the period between the signing of the judgment and the signing of the decree "which elapses uncovered by any application for a copy of the decree was never intended by the Legislature to be excluded in the computation of the period of limitation for an appeal." The case going back to the Division Bench for final disposal, the learned Judges of that Bench granted extension to cover the period of the delay on the ground that the appellant had been misled by the practice of the High Court, and also by conflicting decisions within the High Court. The practice in question was found to have favoured the appellant until the decision of the Full Bench in the instant case. Article 156 of the Limitation Act prescribes with precision the terminus a quo for an appeal of this kind. This is "the date of the decree or order appealed from" and the words are apt to bear the inference that a decree always follows upon a judgment in a suit and does not follow upon an order other than a judgment. By the effect of Order XX, rule‑ 7, the decree is to bear the date of the judgment and it would appear that in a case where Order XX, rule 7, C. P. C., is applied, the time which elapses between the announcement of the judgment and the signing of the decree is included in the time requisite for obtaining a copy of the judgment and the decree. Reference to Order XLI, rule 1, will show that a memorandum of appeal is to be "accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded." The rule places primary importance upon there being attached to the memorandum a copy of the decree, and clearly mentions the judgment in terms of lesser essentiality. From this a conclusion may be reached, at least tentatively, that until the decree has been made out so that a copy thereof may be obtained, the requirements of Order XLI. rule 1, cannot be met. In other words, that the date of taking steps requisite for satisfying the requirements of Order XLI, rule 1, commences, from the point of view of limitation, from the time when the decree has come into existence. The view that application can be made by an interested party at any time after announce ment of the judgment, and that if this is delayed until after the decree has been signed, the conclusion of negligence on the part of the person applying must follow, does not in our view, find full support from the wording of Order XLI, rule

1. There is a difference between anxiety and due diligence. An anxious litigant may make an immediate application after the announcement of the judgment, but for satisfaction as to due diligence, it is the requirement of law, which must determine the matter. There being a sanction provided, viz., that of dismissal if the prescribed period of limitation is exceeded, care should be taken that no burden is placed upon the litigant which is heavier than that which the statute, fairly interpreted with it. its terms, imposes. Since Order XLI, rule 1, renders it possible for an appellate Court to dispense with the copy of the judgment, but not of the copy of the decree, for the due presentation of a memorandum of appeal, and since Article 156, in terms, prescribes the date of the decree, and not of the judgment, as the terminus a quo, the duty of the litigant should be assessed in relation principally to procurement of a copy of the decree. Just as no application for copy of a judgment can be expected to be made until the judgment has at least been announced, so, no litigant satisfying the law in its terms can be required to make application for a copy of the decree before that decree has come into existence. The relevant law appears clearly to distinguish between the judgment and the decree which follows upon it, and speaking with respect, this distinction cannot be allowed to be obscured on assumptions, such as, that a decree "in a legal sense" comes into existence as soon as a judgment is pronounced, or that "in its essence" a decree is not a thing "separable from the judgment." The conclusions reached above are unaffected by the fact that Order XX, rule 7, C. P. C., requires that the decree should bear the same date as the judgment. That provision renders the formal expression of the adjudication effective, as between the parties, from the date of such adjudication, but it cannot be construed so as to enhance the burden expressly imposed on the litigant by Order XLI, rule 1, C. P. C., read with Article 156, aforesaid, in respect of the exercise of the right of appeal. Where there is delay in signing of the decree, that would ordinarily be accommodated in the period requisite for obtaining a copy of the decree, even if notionally, the date of signing of the decree is related back to the date of the judgment, for purposes of limitation. But the time would still run from the date of signing of the decree, under Article

156. Within the territorial jurisdiction of the now defunct Sind Chief Court, there was in force a rule, viz., rule 185 in the Sind Civil Courts Manual, which made express provision to give effect to this requirement. As the preface to the Sind Civil Courts Rules published in 1954, will show, "rules made under the Code of Civil Procedure, 1908, appear in Part II of this formulation," and rule 185 is contained in Part II. Therefore, this rule must be deemed to have been made in exercise of the power conferred upon the Sind Chief Court by section 122 of the Civil Procedure Code. It reads as follows:‑ "

185. The Judge when signing the decree shall write below his signature, also the date, month and year on which the decree is actually signed by him." Reference to section 127 of the Civil Procedure Code will show that a rule so made by a High Court shall have the same force and effect within the local limits of the jurisdiction of that High Court as if it had been contained in the First Schedule to the Code. It follows that Order XX, rule 7, C. P. C., must be construed with rule 185 of the Sind Civil Courts Rules and that: within the jurisdiction of the Sind Chief Court, the provision that the decree should bear the same date as the judgment does not have the effect given to it in the judgment of the Full Bench, F i.e., to take the date of the decree back to the date of the judgment, for the application of Article 156 aforesaid. The effect of rule 185 is to make the date of the decree certain, beyond all possible doubt. No element of uncertainty remains as to the date of signing of the decree, and the main reason for the view of the Full Bench is thus eliminated. A It seems obvious that rule 185 was the foundation of a practice prevalent within the territorial jurisdiction of the Sind Chief Court, of allowing as a general rule, the time that elapsed G between the date of the judgment and the signing of the decree. References to this practice will be found in the judgment of the Division Bench of the High Court, which finally decided the East and West Steamship Co., case, after the answer of the Full Bench to the reference had been returned. The judgment is published as East and West Steamship Co., Ltd., v. Queensland Insurance Co., (P L D 1961 Kar. 417) and shows that the Division Bench relied upon this practice for granting extension of limitation to cover the "legal" delay, as found by the Full Bench. If the Division Bench had had placed before it, rule 185 aforesaid, their conclusion would have rested on a more secure foundation than a mere practice. The Full Bench may well have come to a different conclusion if rule 185 had been brought to the notice of the learned Judges. For, despite the merger of the Sind Chief Court in the High Court of West Pakistan in 1955, rule 185 still has K operation in the territories which were under the jurisdiction of the Sind Chief Court. Accordingly, in the present case, the argument of delay in applying for the copy of the decree and further negligence thereafter is not available in view of the provisions of Order XLI, rule 1, C. P. C. and rule 185 of the Sind Civil Courts Rules. The dismissal of the appeal on the ground of limitation cannot be' maintained, and we accordingly allow this appeal and setting aside the order of dismissal with costs by the High Court we direct that the appeal before the High Court should be restored to its original number and proceeded with in accordance with law. As a difficult point of law was raised, we make no order as to costs in this Court. A. H. Appeal allowed.