2000 PLP 849 (YLR)

Another case referred to by the learned counsel for the. appellant, 1973 SCMR 555, is the same reported as PLD 1973 SC (Pak.) 222, referred to above. The other authority, relied upon by the learned counsel for the appellant is PLD 1977 Lahore 376 wherein the following verdict was given:‑‑ "The District Judge decided the appeal, on the 29th of January, 1964. The appellants applied for the copies of the judgment and decree of the District Judge on the 7th of March, 1964. The copies were ready on the 7th of April, 1964. On these facts, the appeal was barred by 70 days. Learned counsel for the appellants contended that the appellants were entitled to the deduction of time not up to 7th of April, 1964 when the copies were ready but up to 25th of April, 1964 when they were delivered for the reason that they had not been given any date by the Copying Agency for their delivery. Learned counsel for the respondent has not controverted this position. The appellants are, therefore, entitled to deduct the period up to 25th of April, 1964 as held in Gul Muhammad v. Allah Ditta.‑‑‑" The next authority, PLD 1978 Lahore 31 relied upon, gave the following verdict:‑‑‑ "‑‑It is clear from those authorities that it is the duty of the office to intimate to the applicant about the date on which the copy would be prepared. If such date is not given to the applicant before preparation, the application would be entitled to compute under section 12 of the Limitation Act, time spent up to the date of delivery of the copy. I am of the view that the posting of the notices on the notice board about such preparation would be of no avail since that cannot be deemed to be an intimation to the applicant. This intimation should be sent to him personally. Rule 7.22, Chapter 'C', Volume I of the High Court Rules and Orders also provides that a date in writing must be given to the applicant.‑‑" In Karim Haider Shah's case (1992 CLC 25), relied upon by the learned counsel for the appellant, the learned Chief Justice of this Court resolved the proposition in the following manner: ‑‑ "‑‑‑S.5‑‑Civil Procedure Code (V of 1908), S. 96‑‑‑Time‑barred appeal Condonation of delay‑‑‑Formal, application under S. 5, Limitation Act, 1908, would be necessary for condonation of delay‑‑‑In exceptional circumstances, when no formal application was moved but delay was sought to be condoned for reasons described in memorandum of appeal, such explanation amounting to sufficient cause for purposes of condonation of delay could be considered‑‑Object of rules of procedure.‑‑" In. Mrs. Seghera Bano's case (1994 CLC 1302) of Karachi jurisdiction, Mr. Justice Salahuddin Mirza, J., observed as under: ‑‑ Art.87‑‑Limitation Act (IX of 1908), S. 12‑‑‑Appeal‑‑‑Limitation‑ Cetrified copy of judgment and decree‑‑‑Application for obtaining such copy of judgment and decree‑‑ Duty of Copying Agency‑‑‑Law does not require any part to pursue the matter in the Copying Agency, therefore, applicant was under no obligation to pursue the matter with it‑‑Copying Agency was required to issue notice to the person applying for the certified copy and to intimate that the record had been resolved and costs had been estimated‑‑ Costs having been estimated on 13‑10‑1991, same were paid in the very next day and copy was supplied on 16‑10‑1991‑‑Appeal filed on 13‑11‑1991, was thus, within time having been filed within thirty days.‑‑‑"

7. Haji Muhammad Afzal, the learned counsel representing the respondents, relied upon the following authorities where the following respective observations were made: ‑‑‑ In the case, 'Income‑tax Officer and others v. Ch. Muhammad Bashir, decided by the Supreme Court of Azad Jammu and Kashmir on 23‑11‑1993, it was held at page 4, as under: ‑‑‑ "‑‑In. our view, provisions of section 12(2) and (3) of the Limitation Act are clear. According to these provisions, "time requisite for obtaining a copy" has to be excluded. In the present case, the application for obtaining copy was filed on 20th and the copy was made available on 27th. Thus, eight days were spent in taking out the copy which have to be excluded from 67 days. The calculation comes to 59 days.‑‑" In 1975 SCMR 156, it was laid down as under:‑‑‑ "‑‑‑It is well‑settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy an the date when it is ready for delivery. Even during the interval due diligence on the part of the litigant is required by law, and no delay, unless such as was caused b, circumstances over which he had no control and which he could not be, due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which the copy is ready for delivery and the date on which the application chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy In PLD 1983 Peshawar 143, the learned Judges in a Division Bench case, resolved the proposition in the following manner:‑‑ "‑‑‑Ss. 12 and 5‑‑‑Land Acquisition Act (I of 1894), section 54 and Civil Procedure Code (V of 1908), S.96‑‑ Limitation ‑‑‑Appellant not vigilant in efforts to get copies of orders and guilty of extreme negligence and lack of responsibility disentitling him to extension of period of limitation up to date of delivery‑‑ Period of limitation already expired but appellant taking delivery of copies and filing appeal after about more than two months thereafter, and furnishing no explanation for delay‑‑Conduct of appellants, held, negating claim of bona fides and not entitled to condonation of delay.‑‑‑" In PLD 1991 SC 400, the learned Judge of the Supreme Court of Pakistan, at page 404, in para.6 of the judgment, observed as below:‑‑‑ "‑‑As held by this Court in Fateh Muhammad v. Malik Qadir Baksh, 1975 SCMR 156 and Mst. Jameela Khatoon v. Mst. Tajunnisa, PLD 1984 SC 208, "time requisite" for obtaining certified copies of the necessary documents required to be filed with an appeal is that consumed between the date the application for certified copies is made and the date the same are ready for delivery by the Copying Branch.‑‑‑"

8. After analysing the law cited by the counsel for the parties, in view of the consensus of the authorities and particularly the authorities of the Azad Jammu and Kashmir jurisdiction for which this Court is bound, it can be held that the time spent between the application and preparation of the copies, has to be deducted while computing the limitation for filing an appeal provided the application was not moved when the, limitation had already run out. A delay in receiving the copies or depositing the fee after preparation thereof on behalf of the applicant, is not to be deducted, constituting negligence and carelessness. It will not be out of place to mention that the authorities relied upon by the learned counsel for the appellant, are from different jurisdiction of Pakistan and lay down the principles keeping in view the rules and regulation as framed by the respective High Courts or the Supreme Court. None of the rules where corresponding provision may be enacted, was referred to by the learned counsel for the appellant. It will also be important to mention that the facts of citations referred to by the appellant were also different. The citations referred to by the respondents counsel, particularly the dictum of the Supreme Court of Azad Jammu and Kashmir, were direct and relevant to the facts involved in the present case. This Court; as said earlier, is bound by the authority.

9. In the present case, the District Judge, Mirpur recorded the judgment and decree on 31‑10‑1993. The application for obtaining certified copies was moved on 16‑12‑1993. The copies were prepared on 23‑1‑1994 but those were received by the applicant on 31‑3‑1994 when the copying fee was also deposited on the said date. Therefore, it can safely be held that the period from 16‑12‑1993 to 23‑1‑1994 when the copies were prepared, is permissible to be deducted while computing the limitation for the purpose of these appeals. However, further period till 31‑3‑1994 when the copies were received by the applicant after depositing the fee, cannot be deducted being wilful negligence and carelessness on the part of the appellant whose duty was to follow his application. No reasonable explanation has been offered for such delay justifying its condonation.

10. In view of the above discussion, the appeals on behalf of the appellant, are held to be time‑barred as such, are dismissed with no order as to costs. H.B.T./181/AJ&K Appeal dismissed.