1989 PLP 3447 (MLD)

Ch. Asghar Ali Bhatti for Petitioner. Ch. Muzammal Khan for Respondent. Date of hearing: 22nd April, 1989. The appeal filed by the petitioner before the learned lower appellate Court was dismissed at preliminary stage on the ground that it was barred by time. The petitioner made an application in the appeal, under section 5 of the Limitation Act which was supported with an affidavit alleging that the copying agency orally intimated him to collect the copy of the judgment and decree of the learned trial Court appealed against on 2‑12‑1984. On 2‑12‑1984 according to averments in this application the copy was not supplied as he was informed that it was not ready and the same be obtained thereafter and ultimately it was delivered to him on 5‑1‑1985. The learned lower appellate Court after examining an official from the copying agency but without recording his statement recorded a finding that the copy was ready on 2‑12‑1984 and was not collected by the petitioner, therefore, appeal was barred by time. The respondent appeared before the learned lower appellate Court at limine stage but he was not issued any notice to contest the application, therefore, he did not have the opportunity to contest the application by filing counter‑affidavit.

2. The grievance of the learned counsel for the petitioner was that examination of official of copying agency as against affidavit of the petitioner, without recording his evidence and affording opportunity to the petitioner to rebut the said evidence was illegal as it had the consequence of depriving the petitioner of his valuable right to establish that the facts asserted in the application under section 5 of the Limitation Act were correct.

3. I am of the view that the learned lower Appellate Court has not disposed of the application under section 5 of the Limitation Act in accordance with law. The respondent should have been issued notice on the said application and provided an opportunity to contest it. The application was supported with an affidavit and unless there was counter‑plea or evidence on the record that the assertions of the petitioner were correct or otherwise, the said application could A not have been disposed of merely on the examination of some official from copying agency whose statement was not even recorded and the petitioner was not afforded an opportunity to cross‑examine him. The learned lower appellate Court acted with material irregularity and illegality in exercise of its jurisdiction. The impugned jugment and decree, dated 27‑2‑1985, therefore, is not sustainable. The revision petition is accepted. The judgment and decree passed by the learned lower appellate Court is hereby set aside. The case is remanded to the learned lower Appellate Court who shall decide the appeal and application under section 5 of the Limitation Act afresh in accordance with law. Since the Presiding Officer of the learned lower appellate Court who passed the impugned judgment and decree according to the learned counsel for both the parties has been transferred, therefore, the parties are hereby directed to appear before the learned District Judge, Lahore on 18‑5‑1989 who may either decide the appeal himself or entrust the same to the successor Court of the learned Additional District Judge who decided the appeal or to any other Additional District Judge, competent to hear the same. The appeal shall be disposed of before 31‑7‑1989 positively. H.B.T./M‑1366/L Revision accepted/order accordingly.