P L D 1954 Lahore 361 (PLP)

ABDUL AZIZ KHAN, J.‑Mr. Iftikhar‑ul‑Haq Khan, the learned counsel for the respondent, raised a preliminary objection to the effect that the appeal to this Court is barred by time. The judgment appealed against was given on 12th of April 1952. An application for a certified copy of this judgment and decree was made on 2nd May 1952 which were completed on 3rd of May 1952. The appellant, is, therefore, entitled to two days as "tithe requisite" under section 12 of the Limitation Act. The appeal should have been filed within 92 days i.e., by the 13th of July 1952. The appeal was lodged in this Court on 12th of July 1952 but the Memorandum of Appeal was not accompanied by a copy of the judgment of the trial Court. Rule 2 of Order 42, C. P. C., which has been framed by this Court, under the provisions of section 122, C. P. C., requires that in addition to the copies specified in Order 41, rule 1, the Memorandum of Second Appeal should be accompanied by a copy of the judgment of the Court of first instance. Since this Rule was not complied with, there was, therefore, no valid presentation. In Davala v. Hiru (67 Indian Cases 670) it was held :‑ "Presentation of a Memorandum of Second Appeal to the Lahore High Court unaccompanied by a copy of the judgment of first instance as required by rule 2 added by the High Court to Order 42, C. P. C., is not a valid presentation.." In Maulu Ram Mal v. Siri Ram I L R 2 Lah. 227 it was held that a Memorandum of Second Appeal to the High Court must be accompanied by a copy of the judgment of the Court of first instance and if the latter is not presented till after the period of limitation has expired, the appeal should ordinarily be rejected as barred by limitation. A Division Bench of this Court took the same view in Naul and others Mula and others A I R 1926 Lah.

026. The Deputy Registrar returned the Memorandum of Appal on the same day with a direction that it may be re‑filed with a copy of the judgment of the trial Court within 2 weeks. The Deputy Registrar passed the aforesaid order under Rule 5 of Chapter I Part A, Volume V of the High Court Rules and Orders. The Memorandum of Appeal was re‑filed on the 2nd of August 1952 along with a copy of the judg ment of the trial Court. An application for the copy of the judgment of the trial Court was made on 11th of July 1952. The copy was complete and ready for delivery on 18th July 1952. The appeal could have been re‑filed within the time granted by the Deputy Registrar. It was, however, re‑filed on 2nd of August 1952. There is no explanation for the delay from 27th July 1952 to 2nd August 1952. Mr. Muhammad Shafi, the learned counsel for the appellant contended that under section 12 he is entitled to the time spent in obtaining a copy of the judgment of the trial Court. In Chuhar Mal v. Bira Ram A I R 1925 Lah. 461 it was held that only the time requisite for obtaining a copy of judgment appealed against and of the decree can be excluded. In Gurdit Singh v. Charan Das 72 Indian Cases 797 a Division Bench of this Court held‑

"In computing the period of limitation for a second appeal, the time taken in obtaining a copy of the decree as well as a copy of the judgment of the lower Appellate Court can be excluded under section 12 of the Limitation Act. But the time taken in obtaining a copy of the Trial Court's judgment cannot be excluded under that section. Nor can such time be excluded under section 5 of the Act, where the copy of the Trial Court's judgment was, or could be, obtained before the expiry of the period of limitation." In view of the above authorities the contention of the learned counsel for the appellant cannot be accepted. The learned counsel next urged that the delay may be condoned. In support of his contention he relied on Sardar Prithi Pal Singh v. Pandit Hans Raj and others A I R 1939 Lah. 378 in which Skemp J. held‑ "Under the law the appellant is not entitled as of right to deduct the period spent in obtaining a copy of the first Court's judgment, but if the appellant had applied for a copy before limitation for filing appeal had expired, High Court may allow the time spent in obtaining that copy if he had filed the copy on the day he obtained it or very soon afterwards." In the case under consideration the Deputy Registrar fixed 2 weeks for re‑filing the appeal and this time expired on 27th July 1952. The copy of the trial Court's judgment was ready on 18th July 1952. It could have been filed within the time fixed by the Deputy Registrar but it was not re‑filed till 2nd August 1952. It is settled law that in) order to have the benefit of section 5 it is the duty of the appellant to explain the delay for every day that elapses beyond the period allowed by the Limitation Act for filing an appeal. In this case it was necessary for the appellant) to explain the delay from 27th July 1952 to 2nd August 1952. The appellant filed an affidavit which is dated 28th August 1952. No attempt has been made to explain in it the delay in re‑filing the appeal with a copy of the judgment of the trial Court from 27th July 1952 to 2nd August 1952. In the absence of such explanation the delay cannot be condoned. For the reasons stated above I dismiss the appeal with costs. A. H. Appeal dismissed.