1987 PLP 2043 (CLC)

MUHAMMAD HASSAN SINDHER, J.‑‑This first appeal to impugn decree dated 18‑1‑1977 of learned trial Court in the preliminary form in suit for rendition of accounts directing the appellant bank to render full and true accounts in respect of the deposit accounts of the plaintiffs in the branches of the appellant bank at Rawalpindi and Lahore was filed on 1‑10‑1977. The Bench hearing the case in motion noticed that the appeal was "apparently time-barred" and hearing was adjourned enabling learned counsel for the appellant to file an appropriate application, if necessary. Application (C.M. 4044‑C‑77) for condonation of delay under section 5, Limitation Act was filed on 3rd October, 1977. the appeal was admitted leaving the question of limitation open. The facts relevant to the disposal of the application have beep mentioned in the order dated 9‑10‑1977 which were stated here at the risk of repetition so as to make this order in itself intelligible and self‑contained. There are two copying agencies in the District establishment, one under the control and supervision of District Magistrate which entertains applications for supply of copies against final orders and judgment of Civil/Criminal Courts and the other under the control of District Judge which issues copies of the orders of civil Courts in pending cases. As indicated above the decree under appeal was passed by learned Civil Judge vide his order dated 18th January 1977. Application was made by a law officer of the bank in the Copying Agency under the supervision of the District Magistrate on 20th January, 1977 and was registered there at serial No.140. The application was passed on to the Court concerned for requisition of record which was returned by Ahmad in the Court on 1‑3‑1977 with the report that the appellant should apply to the Copying Agency in the Court of District Judge as the case was still pending decision. The Incharge of the Copying Agency made an endorsement on 2‑3‑1977 that the applicant be informed. This application was collected by the Law Officer who had applied for copy or someone else on behalf of the bank from the said Copying Agency on 14‑9‑1977 and presented in the office of District Judge on 20‑9‑1977 for orders for supply of copy. The application was registered at serial No.3014 in that office. Copy was prepared on 29‑9‑1977 and delivered same day. It is contended in the application (para 7) for condonation of delay in filing the appeal, that delay in filing the appeal was not deliberate, was caused by belated supply of copy and was condonable. Concluding para of the application reads as under:‑ "That under the circumstances mentioned above, appeal may kindly be treated as filed within the period of limitation otherwise the Court be pleased to condone the delay as excusable under the circumstances explained above." It will be seen that the claim initially is that the entire period commencing the date of application for copy viz. 20‑1‑1977 till the date of delivery of copy after more than eight months of the application (29‑9‑1977) be excluded as "time requisite" for computing the period of prescribed limitation of 90 days for the appeal (Article 156) under section 12(2), Limitation Act. Alternately, the delay which had occurred in unusual circumstances be condoned under section 5 Limitation Act. Learned counsel for the appellant had during argument also put forth this contention that the appellant bank was not to blame for delay in the supply of copy inasmuch as no date of delivery of copy was given time be extended under section 5 referred to above so that the appeal was heard and disposed of on merits. We do not find any substance in either of the two contentions that the appellant bank was entitled to the benefit of section 12 Limitation Act nor delay could be condoned in exercise of powers under section

5. The implication of the provisions in section 12 Limitation Act has been subject‑matter of numerous decisions. "Time requisite" under the said section has all along been interpreted to mean the time properly and reasonably required for obtaining copies of decree and the judgment. The appellant has to take reasonable and proper steps to obtain copy in order to get benefit of section

12. The time consumed by the appellant's own laches of negligence cannot be allowed as being requisite for obtaining copies. It is a question of fact in each case, whether any part of the delay beyond the prescribed period was due to the default or laches on the part of the appellant. In the instant case, the appellant or the person applying for copy on behalf of the, appellant had not taken any steps for about eight months to ascertain from the copying branch where the application was originally filed, if copy had been prepared of what could be the reasons for non‑supply of copy. It was held by Privy Council in Pramatha Nath Roy v. The Hon. William Arthur Lees A I R 1922 PC 352 that no period can be regarded as requisite under the Act which need not have elapsed if the appellant had taken reasonable and proper steps to obtain copy of the decree or the order. There is no warrant for the proposition that in determining what period is to be deducted in any case, the time actually consumed in obtaining the decree (copy) must be deducted. Reference be also made to another judgment of the same Court in Jijibhoy Surty v. T.S. Chettyar (a firm) A I R 1928 P.C.10' that the word "requisite" is a strong word; it may be regarded as meaning something more than the word required. It means properly required and it throws upon the pleader or learned counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. Both these cases were followed by the Supreme Court in Fateh Muhammad and others v. Malik Qadir 1975 S C M R 157 and it was held that no delay unless such as was caused by circumstances over which he had no control and which could not by due diligence be avoided, can form part of "time requisite" for obtaining the copy. In that case also the contention on the side of the appellant was that they were not informed of the date when the copy would be ready and the time lag between the day the copy was ready and the day the appellant received it be exempted in computing the period of limitation. The contention was rejected observing that the time between the date the copy was ready for delivery and the date on which the appellant chooses to take delivery thereof is not a portion of the "time requisite" for obtaining copy. It was held by a Division Bench, of this Court in Gul Muhammad v. Allah Ditta P L D 1960 Lahore 443 that time requisite for obtaining copies which can be excluded under section 12 Limitation Act is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all. However, in a later case; Din Muhammad v. Abdul Aziz P L D 1967 Lahore 650, it was held that the appellant is not entitled to the benefit of the rule laid down in Gul Muhammad's case if he had shown no reason for not obtaining copy from the copying agency. Precisely, this point was considered in a recent case: Ghulam Ali and another v. Lal Khan and two others P L D 1979 Lahore

409. In that case also the contention raised was that delay in obtaining the certified copies of the impugned decree and judgment was caused by the fact that no date for preparation of the copies was given to the petitioner and for this the time from the date of application for copies to the date when the petitioners collected the copies should have been computed. The argument was turned down with the observation that petitioners should have made out a prima facie case by affidavit etc. There is no explanation why no steps were taken for such a long period to enquire about the copy from the copying branch. There is also no explanation why application which the appellant had received back from the copying branch concerned on 14‑9‑1977 was not presented in the office of District Judge for six days. Besides, application was not made to the proper office which fact also weighed against the contention of learned counsel for the appellant. Application in the proper office was made on 20‑9‑1977 when limitation for filing appeal had already run out. Exclusion under section 12 can be claimed only if application for copy is made at a time when the right to appeal subsists.

2. The question of excusing delay under section 5 has to be approached from the point of view of applicant's conduct. Court has no jurisdiction to extend the time where the applicant has been so grossly negligent and inactive as was the case here.

3. We hold that the appeal filed after about eight and a half months from the date of decree was hopelessly barred by time. There is no case whatever for exercise of discretion under section 5, Limitation Act in favour of the appellant. The application is dismissed and so is the appeal. M.Y.H./M‑216/L Appeal dismissed.