1989 PLP 267 (CLC)

It seems that the Advocate for the appellant had filed an application on 28‑2‑1988 for obtaining certified copy of the order which was granted on 28‑2‑1988. On this application the case was received on 1‑3‑1988 and assessment was made on the same day when on 9‑3‑1988 endorsement was made that cost has not been paid. Again on 14‑3‑1988 following note appears on the back of the application:‑ Case again received today on the same application for supply of certified copies as per order dated 14‑3‑1988 passed on application dated 13‑2‑1988. Therefore, it seems that both these applications were consolidated together and the certified copy was granted but in this copy the endorsement was made which is as follows:‑ Date of application: 28‑2‑1988 Assessment on: 1‑3‑1988 Fee deposited on: 14‑3‑1988 Copies made ready: 15‑3‑1983 Stamp supplied on: 15‑3‑1988 Certified on: 15‑3‑1988 Delivery on: 15‑3‑1988 According to the learned counsel for the appellant from these facts it is clear that the appellant had not committed any unreasonable delay. The date of 28‑2‑1988 mentioned in the certified copy ought to have been 13‑2‑1988 and if the time from 13‑2‑1988 to 15‑3‑1988 is excluded the appeal is within time. He has further contended that the delay in estimating the fee is due to the non‑availability of the file and the act of the Copying Branch of the Court for which the appellant cannot be held responsible. On the other hand Mr. Mushtaq Memon, the learned counsel for the respondent nas contended that the appellant had given wrong number as 774/85 deliberately and the order dated 14‑3‑1988 has not been challenged, therefore, the first application dated 13‑2‑1988 cannot be taken into consideration as it was not filed in a proper Court. A perusal of the record of the Controller shows that an application for certified copy was filed on 13‑2‑1988 in which case No.774 was correct but due to overtyping the year could be read as 86 This seems to be a typographical error which was not caused intentionally. The application was filed in the Court of 4th Senior Civil Judge as according to the appellant the cases of Ferozabad P.S. jurisdiction had been transferred to this Court. There seems to be some confusion in the mind of the appellant to treat this case to have been transferred when actually only the pending cases had been transferred. This would be a bona fide mistake on his part in filing the application in that Court, but the fact remains that the same remained in the custody of the Court till 13‑3‑1988 when it was returned and on the next day i.e. 14‑3‑1988 order was passed by which certified copy was ordered to be delivered on the basis of the application dated 28‑2‑1988, which seems to have been filed by the Advocate for the appellant in the proper Court. It may be mentioned that the application, dated 13‑2‑1985 was filed by the appellant himself and not by his Advocate. The appellant then deposited the cost which was assessed on application dated 28‑2‑1988 and copy was supplied on 15‑3‑1988. By order dated 14‑3‑1988 the application dated 13‑2‑1988 was not rejected but in fact it was consolidated with application dated 28‑2‑1988 and that application was treated to be an application on the basis of which certified copy was granted. This in my view was not the proper course adopted by the learned Controller as it was likely to affect the right of appeal of the appellant. The application dated 13‑2‑1988 was pending, the certified copy should have been granted on that basis and the date of application should have been mentioned as 13‑2‑1988 instead of 28‑2‑1988. Furthermore, where one copy has been issued on the basis of two applications the] date of application should be the date on which the first application was presented validly and legally and the same has not been dismissed or disposed of. The learned counsel for the respondent then contended that even if the application is treated to have been filed on 13‑2‑1988 as fee was assessed on 1‑3‑1988 and cost was deposited by the appellant on 14‑3‑1988, this period of 13 days should not be excluded from computing the period of limitation because it cannot be treated time requisite for obtaining the certified copy. The fee was assessed on 1‑3‑1988 and the same was paid on 14‑3‑1988. The Copying Department in the District Court is a Government department and agent of the Court. Reference can be made to Mathela & Sons v. Sher Muhammad AIR 1935 Lah. 682 and Gul Muhammad v. Allah Ditta P L D 1960 Lah.

443. Its working and procedure is governed by the Sind Chief Courts Rules. Therefore, if any delay is caused by the Copying Department in estimating cost, preparing the copy or due to non compliance of any rule which adversely affects the substantive right of the applicant, the time spent due to such delay shall be treated B as time requisite for obtaining certified copy. Rule 322 provides that as soon as the order is passed for grant of certified copy the Record Keeper or under his supervision the Branch shall register the number and date of the application in the Register and give a serial number to it. He shall at once or during the same day but ordinarily not later than the following working day ascertain the amount of the copying fee leviable according to the prescribed scale and after entering them on the application communicate them to the applicant. Therefore, it seems necessary that after the cost is estimated it should be communicated to the applicant. There is nothing on record to show that such a communication was made nor there is any material to suggest what is the practice which is treated as communication of estimation of the cost. Both the parties are silent about it and none of them have produced any material on record. In Mst.. Safdari Begum and 2 others v . Amir Ali Tabrezi 1985 C L C 836 it was observed that where the rule requires to intimate the date of delivery or preparation of certified copy, and such intimation has not been given, the time upto the period when copy was delivered shall be excluded from computing the period of limitation. Reference can also be made to Gul Muhammad s case P L D 1960 Lah.

443. In the present case as there is nothing on record to show that the applicant was intimated of the estimate of cost made by the copyist, the time from the date when cost was estimated and the date on which it was deposited shall be excluded from computing the period of limitation. Mr. Mushtaq has referred to PLD 1963 Lah. 653, 1980 C L C 431, 1980 CLC 1130, NLR 1981 AC 161 and A I R 1961 Madh. Pra. 310 in support of his contention that under section 12(2) of the Limitation Act no period can be regarded requisite which need not have elapsed if the applicant has taken reasonable and proper steps to obtain the certified copy off the order. There can be no cavil with his proposition. But it is not applicable to the facts of the present case. Here the delay was not due to appellant s failure to deposit cost but due to non‑observance of the Rule by the Copying Department. On this analysis of the facts and law the appeal is within time. No other argument has been raised with regard to the stay application. The appeal has been admitted and no grounds have been shown for not granting the stay. The operation of the impugned order is stayed. H.B.T./S‑272/x. Stay granted.‑