1973 PLP 217 (PTD)

"(a) nine days on account of the winter holidays of the High Court from the 24th of December 1971 to the 1st of January 1972 (both days inclusive); (b) one day on account of Sunday falling on the 2nd of January 1972, i.e., the last day of the expiry of Limita tion; and (c) five days requisite for obtaining copies from the 3rd of January to the 7th of January 1972. thus making a total allowance of fifteen days, besides the statutory period of twenty days. According to the learned counsel the appeals filed on the 17th of January 1972 were therefore within time.

3. We proceed to examine the validity and permissibility of each of the periods claimed by the learned counsel for the appellants. It will be seen that the winter holidays of the High Court were co‑terminus with the period of statutory limitation, and therefore the question of adding the number of these holidays to the period of limitation does not arise. Section 4 of the Limi tation Act enjoins that "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 re-opens," It is clear therefore that the only Court holidays which are to be allowed in addition to the prescribed period of limitation are those which fall on the day of the expiry of that period or immediately following it. If the period of limitation is still running when the Court re‑opens, the plaintiff or the appellant cannot claim the exclusion of such holidays. The first period of nine days claimed by the counsel for the appellants has therefore to be disallowed.

4. On the reasoning just mentioned, and according to section 4 of the Limitation Act, Sunday, the 2nd of January 1972, has to be allowed to the appellants as the statutory period of limitation expired on that day but the appeals could not be filed owing to the Court being closed. The appeals could there fore be filed on the 3rd of January 1972.

5. The applications for obtaining certified copies of the orders under appeal were filed by, or on behalf of the appellants on the 3rd of January 1972 and the copie3 were delivered on the 7th of January 1972, thus taking five days. This period has to be allowed under section 12 of the Limitation Act. However, there has been considerable argument at the Bar as to whether the applications for copies filed on the 3rd of January 1972 could be treated as being within limitation which had in fact expired on the 2nd of January 1972, and the appeals were permitted to be filed on the 3rd of January 1972 by the application of the special exemption contained in section 4 of the Act. The contention raised on behalf of the respondents by Sheikh Abdul Haq is that in order to obtain the benefit of subsection (2) of section 12 of the Act the appellants had to present applications for certified copies within the statutory period of limitation, and not within the extended period available to them by the application of section 4 of the Act.

6. It does not appear to us to be necessary to embark upon any lengthy discussion of this question in view of the fact that the matter has already been authoritatively dealt with in Siyadut‑un‑Nisa v. Muhammad ((1897) 19 All. 342), Tukaram Gopal v. Pandurang Sadaram (I L R 25 Bom. 584), Pandharinath v. Shankar (I L R 25 Bom. 586) and Baradi Prasanna Lod v. Kubbad Mia (P L D 1962 Dacca 381). The first mentioned three cases deal precisely with the question we are considering here, namely the allowance of time requisite for obtaining a copy when application for such copies was made on the re‑opening of the Court after the period of statutory limitation had expired during the Court holidays. The learned Judges held that as long as the application for obtaining the certified copy had been made on a day when the right of appeal was subsisting, the benefit of section 12 would be available. This is precisely the situation here, namely, that the applications for copies in both the cases were made on the 3rd of January 1972, on which date the right to file these appeals was still subsisting in accordance with section 4 of the Act.

7. In the case before the East Pakistan High Court the same view was reiterated. It was observed on page 397 of the Report, that‑ "the period of thirty days prescribed by Art. 152 of the Limitation Act is the primary period; but the total period of limitation itself has to be computed with reference to section 12 and other sections of a similar nature. If the primary period of thirty days prescribed by Article 152 plus the periods which are allowed under section 12 of the Act show that the period of limitation his not expired, an appellant is certainly entitled to the benefit of section 12 even though he has not applied for a copy of the judgment or decree within thirty days from the date of the decree.

8. We are in respectful agreement with the view taken in the cases noticed above. The principle, that the period of limi tation comprises two elements, namely, the primary period plus the periods allowed by the various provisions of the Limi tation Act itself, is certainly not open to any exception, and as long as this period has not expired, the right of appeal subsists. Such being the case an application for obtaining a certified copy of the judgment or decree can be made within this period, with the result that the period shall stop running until such time as the copy is delivered. To put it more simply, the period of limi tation would stand extended by the time requisite for obtaining the certified copy. We would thus accept the claim made by the appellants for giving them an allowance of five days spent on obtaining certified copies.

9. For the foregoing reasons, we are of the view that in addition to the period of twenty days, allowed by law, the appellants are entitled to one day on account of Sunday, the 2nd of December 1972, and five days spent in obtaining the copies. The appeals should therefore have been filed by the 7th of January 1972 but they were in fact filed on the 17th of January 1972.

10. The appellants not being entitled to any allowance beyond the 7th of January 1972, the burden lies on them to show that there was sufficient cause for not filing the appeals until the 17th of January 1972, so that their cases might be covered by section 5 of the Limitation Act. The only explanation furnished in both the cases is that the orders of the learned Single Bench were delivered during the December War and it was therefore not possible for the counsel to obtain instructions from the appellants, and that these instructions could only be obtained after the war when applications for certified copies were made on the 3rd of January 1972, i.e., on the very first day of the opening of the office of the High Court after the winter holidays. This explanation does not, however, explain the delay that has occurred from the 7th to the 17th of January 1972. No reason whatsoever has teen stated either in the relevant applica tions, or at the Bar, to explain the inaction of the appellants for these ten days. The war had ended on the 17th of December 1971, and the appellants had already given instructions to their counsel for obtaining certified copies, presumably for the purpose of filing these appeals. We fail to appreciate what further instructions were needed from the clients such as the period of ten days. It is wall‑established that in such cases every single day's delay has to be explained This the appellants have failed to do.

11. As a result, we must hold that both the appeals are barred by ten days. and the appellants have failed to shove sufficient cause for condonation of delay. The appeals are accordingly dismissed with costs on the ground of limitation. Appeals dismissed.