1985 PLP 2611 (CLC)

This first appeal is directed against the impugned judgment dated 18-11-1972 by which the suit of the respondent was decreed ex parte. Mr. Ismail Memon has raised the preliminary point that the appeal is time-barred. He drew my attention to the fact that the decree in this case was prepared on 29-11-1972 but the application for copies was made only on 12-12-1972 and thereby 12 days of the requisite period of 90 days provided under Article 161 of the Limitation Act, had expired. He further showed from the decree that the stamps had been supplied by the appellant on 13-12-1972 and costs had also been paid on the same date and he further pointed out that the copy had been prepared on 16-12-1972. But the appellant did not obtain the copy thereafter for a period of 18 days and took the delivery only on 3-1-1973. Even on 3-1-1973 the appellants had about 59 days within which they could have filed this first appeal but the appellants waited till 20th March, 1973 for filing the appeal. He, therefore, stated that the copy have been prepared on 16-12-1972 the time requisite for obtaining a copy under section 12 of the Limitation Act, had been completed and the appellants had wasted full 18 days in obtaining the copy and, therefore, that time could not be excluded from computation. The learned counsel relied on 1975 S C M H 157 where it was held by the Supreme Court that only the interval between the date of application for copy and the date when the copy is ready for delivery can be excluded from computation under section 12 of the Limitation Act.

2. Mr. Faiz Muhammad Soomro pointed out that rule 331 of Sind Civil Courts Rules makes a provision for posting of the list of copies and translations ready for delivery on the notice board of the record keeper's office and unless and until that was done the appellants could not be burdened with the responsibility of taking a copy because it could not be said that the copy was ready for delivery without such notice having been posted. The arguments of Mr. Soomro appeared to be attractive but Muhammad Ismail Memon had a prompt answer to the same in the form of a judgment from the Hon'ble Supreme Court P L D 1984 S C 208 where Supreme Court had taken the note of the arguments based on rule 331 of the Sind Civil Courts Rules. The observations of their Lordships of the Supreme Court in that respect are reproduced h erein below : - "

7. The argument that rule 331 was not complied with inasmuch as the copy prepared by the office was not put on the notice board is untenable and was rightly rejected by the learned Single Judge. This rule only relates to copies ready for delivery to be included in a list on the notice board and since prior to 28-11-1975 the copy was not ready for delivery for want of stamp, it could not be included in the list under this rule. Otherwise apparently the appellant seems to have been aware on 'the aforesaid date when he supplied the stamps to the office, that the copy will be ready for delivery as soon as certification was made thereon, which is clear from the fact that he received the delivery of the copy within three days on 1-11-1975. It has been held by this Court in the case of Fateh Muhammad v. Malik Qadir Bakhsh that time requisite for obtaining copy means only the interval between the date of application for supply of copy and the date when it is ready for delivery, but even during this interval due diligence on the part of the litigant -is required by law, and no delay unless such as was caused by circumstances over which he had no control and which could not be due diligence by avoided, can form part of time 'requisite' for obtaining the copy." This being the view of the Supreme Court I am bound by the same and I have no option but to conclude that the appellants were not diligent in securing the copies after 16-12-1972 for a full period of 18 days. In A fact even after 3rd January, 1973 till 20th March, 1973 the appellants went on waiting for filing the appeal with the result that it was barred by 16, days. This appeal is, therefore, dismissed as time-barred. Mr. Abdul Sattar Shaikh, Additional Advocate-General, supported the view pressed by Muhammad Ismail. M.Y.H.???????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.