P L D 1957 (W (PLP)

WAHIDUDDIN, J.

In this appeal A4st. Sachul was impleaded as the only respondent. She died on the 31st of March 1956 at village Gindal Buriro, Deh Galoo, Tapo Kot Sultan, Taluka Shikarpur, and left surviving as her heirs and legal representatives twelve persons. On 9th July 1956 an application was made under Order XXII, rule 4 read with section 141, Civil P. C. for impleading parties No. 1 to 13 mentioned in the application as legal representatives of -the deceased. Ordinarily under Chapter I-C, Volume V of the Rules and Orders of the High Court of Judicature at Lahore this application could be disposed of under rule 14 by the Deputy Registrar and the parties concerned could have been served with notices to show cause on the date fixed for the hearing of the appeal if they had any objection to their being impleaded as legal representatives, but the Additional Registrar fixed it in Court for consideration as the respondent in reply pleaded that it was time-barred and that only Kadirbux should have been impleaded as the sole legal representative. Mr. Ghulam Hussain Lakhani, who appeared on behalf of legal representative No. 1, has raised two preliminary objections before me against the granting of the application under consideration. He has urged that the deceased died on 31st March 1956 and the application should have been filed within ninety days of the death of the respondent and as this application was filed on 9th July 1956, it is time-barred. It is contended before me that the, time for filing the application expired during the summer vacation, but as the offices of the Court are not closed and civil suits, appeals and other urgent matters are entertained during the vacation, this application should also have been presented to the office. The learned counsel relied on several authorities in support of his contention. He particularly relied on Fatteh Muhammad v. Chotu Ram Rand others (A I R 1921 Lah. 237), Tata Industrial Bank Ltd. v. Abdul Husein Hakimji and others (A I R 1924 Bom. 144), The British India Steam Navigation Company Ltd. v. Sharafally (I L R 46 Mad. 938), Dharamsi Murarji Chemical Co. Ltd. v. Ocehavlal Hargovandus Shah (A I R 1927 Bom. 480) and V. Gurulinga Mudaliar v. Thayyanayaki Ammal (A I R 1948 Mad. 522) in support of his contention. Mr. Khalid Ishaq on behalf of the appellant has relied on section 4 of the Limitation Act, and urged that the period of limitation prescribed for the application under considera tion expired on the day when this Court was closed and therefore under this section he was entitled to prefer it on the day that the Court re-opened. He did not cite any authority in support of his contention and contended that the matter is so simple that it does not require any further support. I have noted with regret that counsel for the perties, particularly the rising members of the Bar, have been very slow and are not ready with their cases and it has now become the function of the judges to find out the case law for them. This is most unfortunate and I hope learned counsel for the appellant, in future, will be ready on the points that are likely to be raised before the Court. The point under consideration is not free from difficulty. There are number of authorities in support of the contention raised by the learned counsel for the respondent. Since the Rules and Orders of the High Court of Lahore have been applied on the appellate side of the West Pakistan High Court, much reliance was placed on the decision of the Division Bench of the Lahore High Court reported in the case of Fatteh Muhammad v. Chothu Ram and others. In that case an appeal under the Letters Patent was presented on the day the Court re-opened after the summer vacation. The period for filing such appeal was thirty days and it was urged that the appeal could have been filed during the vacation as the Court's offices were open and even ordinary appeals to the Court we're presented to the office during the vacation. The learned judges of the Lahore High Court upheld this contention and treated the appe6l as time barred. This view was also supported by two decisions of the Bombay High Court reported in the case of Tata Industrial Bank Ltd. v, Abdul Hosein Hakimji and others and the case of Dharamsi Murarji Chemical Co. Ltd. v. Occhavlal Hargovandas Shah. In these two cases suits were filed under the Summary Chapter and the period prescribed for filing applications for leave to defend the suit expired during the summer vacation, but the defendants filed such application on the re-opening of the Court after the summer vacation. An objection was taken that these applications are time barred, as during the summer vacation the offices of the Court are open for the purposes of receiving such applications. This objection was upheld and it was held that according to the prevailing practice in the Bombay High Court, suits on the Original Side could be filed in the summer vacation and therefore the Bombay High Court, Original Side, was not closed within section 4 in the vacation. It was further held by the learned judges of the Bombay High Court : "Whether a Court is or is not closed is in each case a question of fact, and must depend upon the practice which prevails in the particular Court." In I L R 46 Mad. 938-A I R 1923 Mad. 435 the Presidency Small Causes Court was closed during the summer vacation and an application under section 38 was made on the re-opening of the Court. A preliminary objection was raised that this application is time-barred as according to the Notification under section 92 of Act XV of 1882, the Small Cause Court is bound to draw up a list of holidays and vacations and to obtain the approval of the Local Govern ment to it. The Notification for the midsummer vacation of 1921 provided that "plaints execution applications and other papers will be received only on the days on which the judge sits". In the Notification, during the vacation, Wednesdays and Thursdays were fixed for the disposal of emergent works. The learned judges of the Madras High Court held that the office of the Court was not closed for the summer vacation and therefore the application under section 38 was time-barred and section 4 of the Limitation Act was not applicable. I have considered these authorities and in my opinion the view of the Bombay High Court that it is a question of fact in each case whether a Court is closed for any particular, description of work should be the guiding principle in such cases. Section 4 of the Limitation Act is reproduced below:-, "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court reopens." Before the West Pakistan Establishment Act came into force and the Sind Chief Court was amalgamated with the Lahore High Court, there was a specific provision in the Appellate Side Rules of the Chief Court of Sind whereby it was provided :- "The several Courts and offices of the Chief Court on its Original and Appellate Sides shall be closed on such holidays as the Chief Court from time to time directs. Court Holidays-A list of such holidays shall be published yearly in the Official Gazette: Provided that a suitable arrangement shall be made for urgent work during Court holidays and the long vacation." In the Chief Court of Sind during the long vacation only Civil matters, both on the Original and Appellate Sides, of very urgent nature were entertained and the offices of the Court were considerded as closed for the purpose of the reception of ordinary civil work. I have searched with the aid of the learned Additional Registrar a similar provision in the Letters Patent of the Lahore High Court, in Volume V of the Rules and Orders of the Lahore High Court and in the High Court Judges' Order, 1937, but to my regret we have not been able to discover any parallel rule. I am, however, certain that there must be a provision under which the High Court of West Pakistan announces and notifies its closure dur ing the summer vacation. It is desirable that the Karachi Bench of the West Pakistan High Court should be provided with up-to-date printed sets of the Rules and Orders of the Lahore High Court. I shall respectfully invite the attention of My Lord the Chief Justice that the absence of these Volumes is causing great inconvenience. My attention has, however, been drawn to a notification No. 43-Genl/XVII-13 issued under the signature of the Registrar, West Pakistan High Court, Lahore dated 24th February 1956, under which it was notified that the Karachi Bench of the West Pakistan High Copirt will be closed for civil business on account of the long vacation from Monday the 30th April 1956 to Sunday the 8th July 1956, both days inclusive, and re-opening on Monday the 9th July 1956. It was further notified that "Throughout the period of vacation petitions will be received daily at the respective Seats of Court from such persons as may choose to present them except on Sundays and holidays. All such peti tions and other miscellaneous petitions as cannot be disposed of at once, will be heard on the re-opening of the Court after the vacation on dates which will be fixed for that purpose when such petitions are presented". This Notification clearly shows that so far as the Civil work is concerned, whether on the Original Side or the Appellate Side, the Karachi Bench of West Pakistan High Court, was closed between 30th April up to 8th July 1956, and it was not at all obligatory on the part of the litigants to file appeals or make applications in those matters where the period prescribed was to expire during the long vacation. I have also inquired about the practice pre valent in the Karachi Bench during the last two years, and it is clear that no ordinary applications are entertained during the vacation on the Civil Appeallate Side. Only applications of very urgent nature are moved with the permission of the vacation judge. Under these circumstances, the view taken in A I R 1921 Lahore 237 and in the Bombay and Madras authorities cannot be applied to the facts of the present case. Section 10 of the General Clauses Act is also relevant for consideration in this matter. Section 10 reads: "10. (1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day yr the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies. (2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January 1887." There is little doubt that the application under con sideration could not be effectively dealt with in the office during the vacation. When a litigant is required to take a particular step to further his suit or appeal, he is required to do so in Court although in practice, for the sake of convenience and to save the time of the judges, it is in fact done in the office of the Court. It is true that the offices of the Court remain open during the vacation while the Court itself is closed for judicial business, and the contention of the learned counsel for the respondent that the office of the Court is merely an organ through which the Court performs such functions and this application could re presented in vacation is partly correct but it overlooks the fact that this would not have in any way improved the situation and certainly would ii-t have accentuated the progress of the suit, In my judgment for this reason alone, a litigant cannot be deprived to invoke D the aid of the provisions of section 4 of the Limitation Act and section 10 of the General Clauses Act. In view of the practice prevalent in this Bench and also the Notification which clearly says that the Court will be closed during long vacation for Civil work, I am of the opinion that the applica tion under consideration is not time barred and it was properly presented on 9th July 1956 within limitation. The neat question urged by the learned counsel for the respondent that Kadirbux is the sole legal representative of the deceased and as the deceased made a gift in his favour the other persons mentioned in the application have nothing to do with his estate, cannot be raised at this stage. The question as to who is entitled to the property left by the deceased is not at all to be considered in this appeal. This question will be decided, if at all, in a separate suit between the legal representatives of the deceased. Under Order XXII it is the duty of the plaintiff or appellant to implead all the legal representatives of the deceased. In this case also this has been done by the appellant. I will, therefore, order that the names of the persons described as legal representatives of the deceased from item No. 1 to 13 should be substituted in place of the respondent and they should be brought on the record as legal representatives. The office is directed to take the necessary steps for the correction of the record and to issue notice, if necessary, under the Rules and Orders of the Court to the parties and the legal representatives of the deceased. The respondent to pay the cost of this application. A. H. Respondent's legal representatives brought on record.