2011 PLP 1862 (CLC)

ABDUL WAHEED KHAN, J.

Mst. Surriya Mall widow of T.K. Mall respondent No.1 herein, filed a suit for dissolution of partnership, rendition of account and appointment of receiver in relation to a firm known as Modern Standard School, 9-Hearne Road Krishan Nagar, Lahore. The suit was contested and after settlement of issues and recording of evidence of the parties, the same was decreed by the Civil Court vide judgment and decree dated 12-1-2002, dissolving the partnership with effect from 1-7-1988. A preliminary decree of rendition of account was also passed in favour of respondent No.1 /plaintiff. Feeling aggrieved of the same, respondent No.2 filed an appeal. The petitioner also filed an appeal to the extent of findings of the Civil Court on Issue No.9, i.e. about validity of a "will". The appeal came up before Addl. District Judge, Lahore who vide his judgment and decree dated 13-11-2003 dismissed the same treating the same to be barred by time.

2. The contentions of counsel for the petitioners are that the Civil Court passed judgment on 12-1-2002 and the decree sheet was drawn subsequently on 28-2-2002. She filed the application for obtaining the copy of the same on 24-1-2002 and procured on 26-4-2002 and thereafter filed the appeal on 9-5-2009. It is submitted that the certified copy of the judgment and decree of the Civil Judge could not be prepared by the Copying Agency as the decree sheet was not drawn on the day when the judgment was announced and that it was drawn subsequently on 28-2-2002. According to him, the Copying Agency, after preparing the copy of the judgment and decree of the Civil Court, did not issue any notice to the petitioner, intimating her to obtain the same for filing the appeal and thus the appeal was not filed beyond the period of limitation and that the appellate court has erred in law in dismissing the appeal on the point of limitation.

3. The contention of counsel for contesting respondent No.1 are that the petitioner had not been vigilant and thus the appellate court has rightly dismissed the same being barred by time.

4. Arguments of counsel for the parties heard and record perused.

5. There are admitted facts that the suit was decreed by the Civil Judge on 12-1-2002 and the decree sheet was not drawn on the same day but subsequently, on 28-2-2002. It could not be denied by the respondents' side that the petitioner filed an application, in the Copying Agency, for obtaining the attested copy of the decree on 24-1-2002. There was no intimation or notice to the present petitioner to the effect that copy of the decree had been prepared and that she may collect the same from the Copying Agency. Section 12 of the Limitation Act is relevant in this matter which is reproduced hereunder:

"

12. Exclusion of time in legal proceedings.

(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3) Where a decree is appealed from or sought to be reviewed the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. (4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. (5) For the purposes 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." The appellate Court appears to be not even conscious about the provisions of section 12 as amended up to date by the Act XIII of 1991, which came into force on 6-4-1991 according to which provision the period requisite for obtaining of certified copies had to start from the date of application and is to be counted up to the date of delivery, regarding which date an intimation has to be given by the Copying Agency to the applicant about the preparation of the certified copy. In the instant case, there was no material before the appellate Court to ascertain that any information or intimation was given to the petitioner that the copy of the judgment and decree was ready for delivery and in these circumstances; after deducting the period commencing from 24-1-2002 up till the delivery of copies on 26-4-2002 her appeal filed on 9-5-2002 was well within the period of limitation.

6. For what has been discussed above, it is held that the appeal was within time and the appellate Court wrongly dismissed the same on the point of limitation. Thus, this revision petition is accepted and the impugned judgment and decree of the appellate Court are set aside and the matter is remanded back with the direction to decide the same afresh on merits after issuing notices to the parties and procuring their attendance. The parties shall bear their own costs. H.B.T./E-6/L Petition accepted.