2010 PLP 507 (YLR)

C.M. NO.1-C OF 2001. SYED ZULFIQAR ALI BOKHARI, J.

This is an application for condonation of delay in filing of appeal. Learned counsel for the petitioners submits that suit was decreed on 26-6-2001 and the application for certified copies was made on 27-6-2001. On 10-7-2001 copies were prepared however, the same were received on 14-7-2001 and appeal was filed on 10-10-2001. Office raised objection that appeal is one day barred by limitation so this application for condonation of delay was filed.

2. Learned counsel for the petitioners contends that in the absence of material on record to show that petitioners were intimated about the completion of the certified copies, the limitation will start from the receipt of certified copies and not from preparation of the same. He further contends that from the date of delivery of certified copies, appeal is within limitation when from preparation of same, the appeal is one day barred by time. He has relied on Mst. Shamim Akhtar v. Munawar Din and 2 others PLD 1993 Lahore 559, Abdul Karm v. Muhammad Ibrahim (1976 SCMR 79), Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan (PLD 1968 Lahore 1205) and Bashir Ahmad v. Inayat Ullah and another (1998 CLC 590). He further submits the petitioner has filed this application along with affidavit but no counter affidavit has been filed from the other side. He submits that the regular first appeal was admitted for regular hearing on 7-1-2002. The same should be decided on merits and not on the ground of limitation which is mere technicality.

3. Learned counsel appearing on behalf of the respondent has opposed the arguments of learned counsel for the petitioners and submits that affidavit filed by the petitioner along with application was not duly prepared and attested which is defective and the same cannot be considered as validly executed and on the basis of that affidavit this petition could not be allowed. He has referred PLD 1995 Lahore

98. He further submits that when the application for certified copies is made the Copying Agency delivers a token of receipt on which the date of delivery is always mentioned. It was the duty of the petitioner to approach Copying Agency at given time and if the same was not prepared the date of delivery was to be extended by the Copying Agency. In this case nothing is on record to show that the petitioners approached. Copying Agency and copies were not prepared. Even otherwise they received the certified copies on 14-7-2001 but filed appeal on 10-10-2001 even after a considerable period from receiving the certified copies. He prayed for dismissal of application for condonation of delay. He has relied on Iftikhar Ali v. S. Abdul Rashid and others (2003 SCMR 1560) and Mian Muhammad Sabir v. Malik Muhammad Sadiq through Legal Heirs and others (PLD 2008 Supreme Court 577).

4. I have heard learned counsel for the parties and perused the record.

5. After amendment of section 12, Act IX of 1908

In the Limitation Act, 1908 (IX of 1908) in section 12 after subsection (4), the following new subsection was added namely:

"(5) for the purpose of subsections (2), (3) and (4) the time requisite for obtaining a copy of the decree, sentence, order judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery." Nothing is available on record to show that the petitioner was intimated by Copying Agency about the completion of certified copies of the judgment and decree. The time spent by the petitioner in obtaining copy of trial Court's judgment as required under Order XLII, Rule 2 will constitute sufficient cause within meaning of section 5 of Limitation Act 1908 and will cover even period lapsing between actual receipt copy and filing of the same in the High Court. The petitioner filed affidavit and explained reason preventing him from filing appeal within time and the same has not been refuted by a counter affidavit. Even otherwise first appeal should not be dismissed only on the ground of limitation. The appellate Court should have decided the same on merits. Even otherwise the appeal filed by the petitioners against the judgment and decree dated 26-6-2001 has already been admitted for regular hearing by this Court vide order dated 7-1-2002 without deciding application for condonation of delay. In the circumstances this application is allowed. Main case

2. Since the matter pertains to the year 2001, Office is directed to fix this case in the first week of July, 2009 for final hearing of appeal. H.B.T./M-834/L Application allowed.