2017 PLP 59 (YLRN)

ABDUL RASOOL MEMON, J.

This petition is from the order of Vth -Additional District Judge, Karachi, South, passed on 11.10.2012 dismissing the petitioner's family Appeal No.50/2012 being time barred.

2. That respondent Mst. Saima Essa filed a suit for dissolution of marriage by way of Khulla, maintenance and recovery of dowery articles against the petitioner. During proceedings of the case, on 28.5.2010 marriage of the couple was dissolved by way of Khula and later-on, respondent No.1/plaintiff withdrew her claim of maintainance on 14.3.2011. Thereafter matter was proceeded only to the extent of recovery of dowery articles and personal belongings of the respondent/ plaintiff and it was decreed vide judgment dated 30.11.2011.

3. That on 10-12-2011 petitioner moved an application for certified copy of the judgment and decree but the decree was prepared on 31.5.2012, fees was deposited on the same date but its copy was delivered to him on 20.09.2012 and on 28.09.2012 the petitioner filed the appeal before the District Judge, Karachi, South, which was dismissed in limine being time barred.

4. Learned counsel for the petitioner contended that after excluding the time spent on obtaining certified copy of the decree, the appeal was within time and even otherwise as an abandoned caution the petitioner also filed an application under section 5 of the Limitation Act with supporting affidavit, for condonation of any delay for the reasons stated in para 6 of the affidavit, which was not controverted. He further submitted that after paying the cost of true copy on 31.5.2012, the petitioner was visiting the office of the court continuously till August 2012 but he was kept on false hopes and ultimately copy was delivered to him on 20.09.2012. According to learned counsel for petitioner no notice for obtaining true copy was given to the petitioner or his counsel, therefore, the delay in preparation of copies could not be ascribed to the petitioner. In support of his contentions, he placed reliance on cases of West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (PLD 1973 Supreme Court 222) and Shujahat Hussain v. Muhammad Habib and another (2003 SCMR 176).

5. On the other hand learned counsel for the respondent No.1 argued that after passing the judgment on 30.11.2011 and decree on 31.05.2012,petitioner was to obtain true copy of the Judgment and decree when it was made ready; that it was not necessary to give any notice to him in this regard but the petitioner himself obtained the copies of the judgement and decree after about three months from the date when copy was made ready for delivery, therefore, the appeal filed before the appellate Court on 20.09.2012 on the face of it was time barred and that petitioner was not entitled to condonation of the delay, as such , his appeal was rightly dismissed in limine.

6. I have given due consideration to the submissions of both the learned counsel for the parties and gone through impugned order. Learned appellate court while dismissing the appeal has made the petitioner responsible for not getting the copies prepared for three months from the date of passing decree. No where is mentioned in the impugned order if petitioner was told by the copying branch to call for the copies on any specific date. The endorsement on true copy of the decree clearly shows that the petitioner had deposited the cost on the same date when decree was prepared, then it was fundamental duty of the copying branch to make the copy ready and was not the responsibility of the petitioner. In case of West Pakistan Industrial Development Corporation, Karachi (supra) it was observed that "the time 'requisite' for obtaining copies which can be excluded under section 12 of the 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 given no information at all".

7. Now, I proceed to apply these principles to the particular facts and circumstances of the case in hand. The judgment was passed by the learned trial court on 30-11-2011 and the decree placed on the record was prepared on 31.5.2012. The copyist's endorsement shows that date of application for copies of the judgment and decree to be 10th December, 2011. It shows that after nine (9) days of passing the judgment but before preparation of the decree, the application for copies was made by the petitioner. Next, the copyist showed that the cost was estimated on 31.5.2012, it candidly shows that cost of the judgement and decree was estimated on the date when the decree was prepared and the petitioner deposited the cost of the true copies on the same date viz 31.5.2012 and the copy was made ready on 31.8.2012 but it was delivered to the petitioner on 28.9.2012.

8. It is admitted fact on record that neither the petitioner was told by the copying branch to call for the copies on any specific date nor any information as to preparation of the true copy of the judgement and decree was given to him, as such, it was carelessness on the part of copying branch of the court who prepared the true copies after three months and delivered it on 12.9.2012 and thus the time for obtaining copies would be till the date when it was delivered to the petitioner. If the period of (9) days of filing of the application after passing of the judgment is excluded even then petitioner had twenty one (21) days for filing appeal after the date of delivery of the true copies. The appeal admittedly was filed on 28.9.2012 after sixteen (16) days of the delivery of the true copies of the judgement and decree, thus it was well within time in view of the dictum laid down in the above case laws. Consequently while allowing this petition, impugned order is set aside and the matter is remanded to the learned Appellate Court for decision afresh on merits after hearing the parties within a period of three months from the date of receiving this order. ZC/M-89/Sindh Case remanded.