1988 PLP 179 (SCMR)

Gulnawaz Ahmad Khan, Advocate and Akhtar Ali Advocate-on- Record for Respondent No.4. Date of hearing: 21st May, 1976. MUHAMMAD YAQUB ALI, C.J.--The dispute relates to disposal of a shop bearing No.S-54-R-161 in Anarkali, Lahore, under the Displaced Persons (Compensation and Rehabilitation) Act. The main shop and the Chobara on it were transferred to the appellant and the stair-case in which the respondent's son carries on drappers business was transferred to him. The orders of transfer were challenged by the appellant in the High Court by a writ petition as without lawful authority. A learned Judge held that as records of the case had not been summoned before 13-1-1962, the terminal date fixed by the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance II of 1962, the order passed by the Chief Settlement Commissioner was without jurisdiction and on this finding set aside the final order of transfer in favour of the respondent. Instead of filing a Letters Patent Appeal from the order of the Single Judge the respondent, relying on the observation in the concluding part of the order, filed a review petition which was dismissed on 30-3-1964. Thereafter the respondent filed a Letters Patent Appeal before a Division Bench on 28-4-1964 which was opposed by the appellants, as barred by time. The learned Judges overruled the objection and held the appeal to be within time by excluding from the prescribed period of 20 days the time spent in pursuing the review application and in obtaining copy of the order passed by the Single Judge. On merits the learned Judges allowed the appeal on 12-3-1969, set aside the order passed by the learned Single Judge and restored the order passed by the Chief Settlement Commissioner whereby the stair-case was transferred to the respondent as an independent commercial unit. Leave to appeal was granted in the case on 1-10-1969 to consider the plea that the Letters Patent Bench had erred in computing the time spent in pursuing the review application and obtaining copy of the order of the Single Judge. There was also no explanation for the delay of 29 days in filing the Letters Patent Appeal on 28-4-1964 while the review application had been dismissed on 30-3-1964. Reliance was placed on Ahmad Din v. Rasul Bibi PLD 1968 SC 213 and Zahur Elahi, v. Fazalur Rehman 1969 S C M R

274. On hearing the learned counsel for the parties we find force in the appeal. The learned Single Judge had allowed the writ petition and set aside the order passed by the Chief Settlement Commissioner on 23-6-1963. The review application was filed by the respondent on 17-7-1963. By then the time prescribed for institution of the Letters Patent Appeal viz. , 20 days had expired. The application for copy of the order passed by the Single Judge was filed on 17-7-1983, and the copy was delivered to him on 23-7-1963. The period of limitation for filing Letters Patent Appeal having expired, the time spent in obtaining copy of the orders of the Single Judge could not be excluded. The learned Judges of the Division Bench, however, computed the time as follows:

"It was first pointed out that the appeal was barred by time as it had been instituted 286 days after the order under appeal was made. The explanation for the delay is contained in an application submitted on behalf of the appellant under section 5 of the Limitation Act and it is to the effect that the appellant was pursuing in good faith an alternative remedy by way of a review petition, as directed by the learned Judge himself. The review petition was instituted on the 17th of July, 1963, and was disposed of on the 30th of March, 1964, thus consuming 257 days. Applying the principle embodied in section 14 of the Limitation Act, we would be justified in excluding this period for computing the limitation. This leaves only a period of 29 days to be accounted for, out of which 20 days is the prescribed period of limitation, and the remaining nine days are said to have taken in obtaining a certified copy of the order under appeal. This copy was applied for on the 17th of July, 1963, and was ready on the 23rd of July, 1963. There is no indication whether any intimation was sent to the appellant to receive the copy which he actually received in November, 1963. The period taken by him in taking delivery of the copy cannot be allowed in its entirety, but a reasonable period would have to be allowed after the copy was ready for delivery, in the absence of any indication on the record that he was directed to receive it on the 23rd of July, 1963. Even if, therefore, three days are allowed, the appeal would be found to be within time, i.e. 20 days period of limitation plus the time taken in obtaining a certified copy of the order under appeal." There is an error apparent on the face of the order. Firstly' as pointed out earlier, as the application for copy was made on 17-7-1963 after the expiry of 20 days, the period prescribed by Article 151 of the Limitation Act, the time spent in obtaining the copy could not be excluded, under Section 14 of the Limitation Act. Further, the time spent in obtaining copy and the time spent in pursuing the review application overlapped but the learned Judges have given to the respondent allowance for both the periods. It is well established that once time has begun to run it does not stop. The time for filing the Letters Patent Appeal having already expired neither the time spent in pursuing the review application nor the time spent in obtaining copy of the order passed by the Single Judge could be deducted from the period of 20 days. Similarly the time spent in obtaining copy of the order rejecting the review application could not be deducted as under the Rule it was not necessary to file copy of that order alongwith the memorandum of the Letters Patent Appeal. In computing the time for filing the Letters Patent Appeal the High Court had thus fallen in error. In the result we allow the appeal, set aside the judgment and order passed by the Letters Patent Bench of the High Court and restore the order passed by the learned Single Judge dated 27-6-1963. No order as to costs. M.B.A. /M-276/S Appeal allowed.