1980 PLP 309 (CLC)

(i) Whether the defendant sold the suit land comprising 12 kanals, 8 marlas to the plaintiff for consideration ? (ii) On proof of the above issue whether the sale-deed was pro cured by the plaintiff through fraud and without consider ation ? (iii) Whether the sale-deed is contravention of Martial Law Regula tion No. 64 ? If so, with what effect ? (iv) Relief. The learned Civil Judge decided the first two issues in favour of the appellant but the third issue against him and dismissed the suit.

3. Feeling aggrieved by the judgment and decree of the trial Court, the appellant went in appeal before the District Judge, Sialkot. The learned District Judge found that the appeal was time barred. He also affirmed the finding of the trial Court on the third issue and dis missed the appeal. The appellant has, therefore, come up in second appeal to this Court.

4. As for the question of limitation, copy of the decree filed before the learned District Judge shows that the appellant made an application for supply of the aforesaid copy on 6th November, 1974. He was told to collect the copy on 13th November, 1974. The copy was, however, not ready for delivery on the said date. It was eventually completed on 30th November, 1914 and delivered to the appellant on 14th of January, 1975. The appeal was filed on 27th January, 1975. The view taken by the learned District Judge was that as the appeal was filed after one month of the date of the completion of the copy, it was time-barred.

5. Learned counsel for the appellant contended that as the copy was not ready on 13th November, 1974, which date was notified to the appellant for collecting the copy, he could not get it on that date. According to the learned counsel for the appellant, the copy was ready for delivery on 30th November, 1974 but as no fresh date for collection of the copy was intimated to the appellant, he received the copy on 14th November, 1974. Learned counsel for the appellant maintained that since the appeal was filed within one month of the last mentioned date, it was within time. He relied on Muhammad Bakhsh v. Nizam Din (P L D 1978 Lah. 31), Gopal Chela v. Rajaram Amtha (13 I C 850), Gul Muhammad v. Allah Ditta (P L D 1960 Lah. 443) and Kala v. Allah Dad (P L D 1977 Lah. 376) to support his contention.

6. On the other hand, learned counsel for the respondent urged that before the learned District Judge the appellant made an application explaining delay in the filing of the appeal in which it was stated that the due date mentioned in the application for supply of copy was 13th November, 1974 although the due date should have been some date after 30th November, 1974 and thus the due date was 14th January, 1975 and not 13th November, 1974. He also said that he remained ill from 18th November, 1974 to 25th January, 1975 and, therefore, he could not collect the copy before 14th January, 1975. According to the learned counsel for the respondent, the appellant did not contact the Copying Agency on 13th November, 1974 to collect the copy or to get the next date for taking delivery thereof. It was also submitted by the learned counsel for the respondent that the medical certificates appended by the appellant to the aforesaid applications did not inspire confidence. Another point raised by him was that since the appellant did not produce any evidence to show that after 13th November, 1974 no fresh date for collecting the copy was given to him, he could not take advantage of the authorities cited by the learned counsel for the appellant.

7. The principle which can easily be deduced from the above-cited cases of Gul Muhammad Kala and Muhammad Bakhsh is that if a person applies for a copy and the Copying Agency does not notify to him any date for the collection of the copy-or if a date for the purpose is speci fied but the copy is not delivered on that date and no fresh date is notified to him for the delivery of the copy, the requisite period for obtaining the copy by him would end on the date when the copy is actually delivered to him even though he does not, in the meantime, of his own, contact the Copying Agency for collecting the copy. 1n the present case, initially a date, that is, 13th November, 1974 was notified icy the Copying Agency for delivery of copy but it was not ready on that date inasmuch as it was completed on the 30tb November, 1974. Ultimately, he got the copy on 14th January, 1975 and filed his appeal on 27th January, 1975. Looking at the date of the completion of the copy, his appeal was prima facie time barred and it was for him to make out a case for securing all possible extensions with a view to bringing it within time. 1f be had produced some evidence or had even filed an affidavit to the effect that after 13th November, 1974 no fresh date was given to him to take delivery of the copy he would have been, on the aforesaid principle, entitled to the exclusion of period upto 14th January, 1975 when he actually got the copy in question, but as he did not produce any such evidence and also failed to put in an affidavit to the above effect it is not possible to compute the period of limitation from any date after the 30th November, 1974 when the copy was ready for delivery. In this view of the matter, I am unable to disturb the 'finding of the learned District Judge that the appeal filed before him was barred by time.

8. As regards the concurrent finding of the two Courts below on Issue No. 3 that the transaction in dispute was bit by paragraph 25 of the Martial Law Regulation No. 64, hereinafter referred to as the Regulation, learned counsel for the appellant contended that before the sale in question was made in his favour the appellant was owner of the estate in which the land in dispute was- located and, therefore, the sale in question was exempt from the operation of the paragraph 25 of the Regulation, by virtue of the proviso to sub-paragraph (4) of paragraph

25. The documents relied upon by him in support of his plea are copies of lamabandis Exhs. P. 4 and P.

5. Exh. P. 4 relates to a Ghair Mumkin Makan (house) while Exh. P. 5 is in respect of 10 marlas of land. In the said documents the appellant is shown as one of the co- owners of the aforesaid house and the land. Learned counsel for the appellant also invited my attention to the statement of the appellant as P.W. 3 in which he said that ire owned land since before Independence, This statement, according to him, has not been rebutted by any evidence of the respondent.

9. I am unable to agree with the learned counsel for the appellant. The copy of Jamabandi, Exh. P. 4 relates to the year 1967-68 and since the sale in dispute took place in the year 1965 it cannot be held, on the basis of Exh. P. 4, that the appellant was owner of the land in the year 1965 when the transaction in dispute was gone into. The copy of Jamabandi Exh. P. 4 is in respect of a Ghair Mumkin Makan (house) which is not land within the meaning of clause (5) of paragraph 2 of the Regulation. As for the oral statement of the appellant relating to his ownership of the land, as it is not supported by any documentary evi dence it is not safe to rely on it.

10. The result, therefore, is that there is no clear and cogent evidence to the effect that the appellant owned land at the time of the sale in dispute. He cannot, therefore, take advantage of the proviso to sub-paragraph (y) of paragraph 25 of the Regulation. In this vie of the matter, the concurrent finding of the lower Courts that the transaction in dispute offended against the provisions of the Regulation is unexceptionable.

11. The upshot of the foregoing discussion is that there is no merit in this appeal. It is, therefore, dismissed with costs. S. Q. Appeal dismissed,