1987 PLP 1612 (CLC)

Syed Zamir Hussain for Respondent. Dates of hearing: 22nd March and 28th April, 1987. Facts giving rise to this civil revision are that the respondent, Muhammad Shafi, was employed as a Clerk with the petitioner, Cantonment Board, Kharian, District Gujrat, when he was removed from service. He challenged the order passed in this behalf, by means of a suit, which was decreed on 28th October, 1974. After about eight months, on 9th June, 1975, the petitioner filed appeal against the judgment and decree of the learned trial Court but the same was dismissed on the ground of limitation. Feeling aggrieved by the judgment and decree of the learned appellate Court, the petitioner has come up in revision to this Court.

2. It was on 29th October, 1974 that the petitioner applied for copies of judgment and decree of the learned trial Court. On 27th February, 1975, the copies were ready for delivery but they were received by the petitioner on 16th May, 1975. It was held by the learned Additional District Judge that time requisite for obtaining copies came to an and on 27th February, 1975, when copies were ready for delivery, and not on 16th May, 1975, when copies were received by the petitioner, and as such the appeal was time‑barred. In taking this view, reliance was placed by him on Syed Jalilur Rehman and 7 others v. Mst. Rashida Begum and 10 others P L D 1976 Kar. 105, Hatim Ali v. Mst. Zulekhabibi and others P L D 1964 (W.P.) Kar. 399 and Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 S C M R 157.

3. Conceding that application for condonation of delay was not made before the learned Additional District Judge, who dismissed the appeal, it was contended by learned counsel for the petitioner that no intimation was given to the petitioner that on 27th February, 1975 the copies were complete and, therefore, the period from 29th October, 1974 (when application for supply of copies was made) to 16th May, 1975 (when copies were received by the petitioner) shall be treated as time requisite for obtaining the copies, within the meanings of subsection (2) of section 12 of the Limitation Act, 1908, and as such his appeal was within time. He cited Muhammad Ramzan v. Abdul Hadi and others 1983 C L C 2820, Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan P L D 1968 Lah. 1205, Syed Faiz Ali Shah (represented by Heirs) v. Chief Administrator of Auqaf Lahore 1974 S C M R 33, West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi P L D 1973 S C 222 and Gul Muhammad v. Allah Ditto P L D 1960 (W.P.) Lah. 443 to support his arguments.

4. On the other hand, it was submitted by learned counsel for the respondent that the plea raised by learned counsel for the petitioner was an afterthought inasmuch as it was not advanced before the learned Additional District Judge. It was also maintained by him that there was no material to substantiate that plea. According to him, if what the petitioner says is correct, it should have made an application before the learned Additional District Judge under section 5 of the Limitation Act, for condonation of delay, stating the facts now alleged by it and should have also filed an affidavit in support thereof but as this was not done by it, extension of time could not be allowed to it even though it was not informed of the date on which the copies were ready for delivery. In this connection, reliance was placed by him on Muhammad etc. v. Allah Ditto P L D 1981 Lah. 293, Din Muhammad v. Abdul Aziz P L D 1967 Lah. 653, Abdul Rahman and another v. Mukhtar Ahmad and another 1985 C L C 1072, Ghulam Ali and another v. Lal Khan and 2 others P L D 1979 Lah. 409 and Muslim Commercial Bank Limited v. Aslam Khan, etc. NT.R 1981 Appeal Cases 121, in addition to the aforementioned cases of Muhammad Afzal Khan Lodhi and Fateh ‑Muhammad and others.

5. In reply to arguments addressed by learned counsel for the respondent, it was explained by learned counsel for the petitioner that by recording the following note on the memorandum of appeal and citing the case of Muhammad Afzal Khan Lodhi the petitioner did assert before the learned Additional District Judge that he was entitled to extension of time upto 29th May, 1975 due to failure of the Copying Agency to inform the petitioner that the copies were complete on 27th February, 1975:‑ According to him, the petitioner's plea in this behalf was not controverted by the respondent. It was, therefore, urged by him that the petitioner was entitled to extension of time upto 29th May, 1975, even though he had not made an application under section 5 of the Limitation Act. It was also maintained by learned counsel for the petitioner that if the learned Additional District Judge had any doubt in respect of correctness of the assertion made by the petitioner, he should have held an inquiry in the matter before giving his verdict on the question of limitation.

6. As indicated above, the appeal was preferred by the petitioner after about 8 months of the passing of judgment and decree appealed against. Period of limitation prescribed for filing the appeal was 30 days. Being fully aware of the fact that the appeal was being preferred long after expiration of the prescribed period of limitation, the petitioner should have specifically pleaded that the date on which copies were ready for delivery was not intimated to it and, therefore, it was entitled to extension of time upto the date of delivery of the copies. This was, however, not done by it by making an application or filing an affidavit. A specific averment in this regard was also not made in the memorandum of appeal. In the aforementioned note it has not been indicated, in so many words or in passing, that date of completion of the copies was not intimated to the petitioner. I am, therefore, unable to agree with learned counsel for the petitioner that in the said note it was asserted by the petitioner that date of completion of copies was not made known to it.

7. In the case of Muhammad Afzal Khan Lodhi, cited before the learned Additional District Judge, the appellant had made an application for condonation of delay stating that "the Copying Department gave no date for the completion or the delivery of the copy and that Munshi of his counsel had off and on been making enquiries about the copy but to no effect." The application was supported by an affidavit of the said Munshi (Clerk). In these circumstances, it was held that the "time requisite" would not stop running on the date when the copy was ready. Relevant observations made in the case of Muhammad Afzal Khan Lodhi read as under:‑ "coming to the appeal before the District Judge, it is to be pointed out that the plaintiff‑appellant applied for a copy of the trial court's judgment on 25th March, 1958. The copy was prepared, attached and completed on 25th of April, 1958. However, it was delivered to the plaintiff on 29th of April, 1958. Before the District Judge, he filed an application under section 5 of the Limitation Act in which it was written that he had put in an application for obtaining copy of the judgment and decree through his counsel Mian Ataullah, Advocate. It was averred that the Copying Department gave no date for the completion or the delivery of the copy and that Munshi of his counsel had off and on been making enquiries about the copy but to no effect. The application went on to state that the Munshi of the counsel made the last enquiry on 24th of April, 1958, from the Copying Agency but they could not state as to when the copy could be delivered. On 29th of April, 1958, on an enquiry it was learnt that the copy was ready but that it would be given after 11 0' clock. In these circumstances, it was pleaded that there was no negligence on the part of the plaintiff because from his side enquiries had been made from time to time from the Copying Department for the date on which the copy might be ready or be delivered and that the delay in the institution of the appeal may be condoned. This application was signed by Mian Ataullah, Advocate, whose name had been quoted in it. It was supported by an affidavit of Muhammad Iqbal, Clerk to Mian Ataullah, Advocate. There was no rebuttal from the side of respondent about these facts nor was any application made to cross‑examine the deponent of the affidavit. The statement made in the affidavit of Munshi Muhammad Iqbal was, in these circumstances, to be accepted as correct. The learned District Judge was of the view that as the copy was ready on 25th of April, 1958, time, therefore, could not be allowed to the plaintiff, because, according to him, it was only up to the date of the preparation of the copy that time was allowed. This approach with great respect to the learned District Judge is not correct, because, the plaintiff was not given any date on which he was to be given the copy." No application or affidavit like the one filed in the case of Muhammad Afzal Khan Lodhi was, however, submitted in the instant case. Impugned judgment of the learned Additional District Judge also does not reveal that at the time of hearing of the appeal it was argued by the petitioner or its learned counsel that intimation of completion of the copies in question was not given to the petitioner. Plea of learned counsel for the petitioner that by citing the case of Muhammad Afzal Khan Lodhi it was asserted by learned counsel for the petitioner that no such intimation was given to the petitioner is, therefore, not acceptable.

8. It seems that by recording the above note and citing the case of Muhammad Afzal Khan Lodhi, Learned counsel, who assisted the petitioner before the learned Additional District Judge, claimed extension of time upto the date of delivery of copies on the assumption that it was not necessary for the petitioner to demonstrate that it was not informed of the date when the copies were ready for delivery. That assumption was, obviously, wrong and unwarranted. It was also not the plea of the learned counsel, who represented the petitioner before me, that the time requisite for obtaining the copies would, in any case, extend beyond the date of preparation of the copies. Since the petitioner had filed appeal after the prescribed period of limitation, onus lay on it to bring on the record that the date of completion of the copies was not intimated to it and as such the time requisite would extend upto the date of delivery of the copies. Extension sought by the petitioner could not be allowed on the basis of conjectures and surmises. If any authority were needed for this proposition I would refer to following rule laid down in Jijibhoy N. Surty v. T.S. Chettyar A I R 1928 P C 103 which was followed in Mst. Jamila Khatoon and another v. Mst. Tajunnisa and others P L D 1984 SC 208 and the aforementioned cases of Fateh Muhammad and others and The Muslim Commercial Bank Limited:‑ "The word 'requisite' is 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 counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up by his opponent in drawing up the decree or by the officials of the Court in preparing and issuing the two documents, he is not responsible."

9. In view of what has gone above, I hold that it was not pleaded by the petitioner, before the learned Additional District Judge, that it was not informed of the date on which copies were ready for delivery. There was, thus, no occasion for the respondent to contend otherwise nor the learned Additional District Judge was called upon to hold any inquiry.

10. The cases of Muhammad Ramzan, Muhammad Afzal Khan Lodhi, Syed Faiz Ali Shah and West Pakistan Industrial Development Corporation, Karachi, cited by learned counsel for the petitioner are of no help to the petitioner because in all those cases it was asserted by the appellants, in one way or the other, that they were not informed of the date of completion of the copies but this is not true of the present case. In the case of Gul Muhammad, which too was referred to by the learned counsel for the petitioner, the Court took it as a fact that the "appellant was not told by the Copying Agency to call for the copies on any specified date". The petitioner, cannot, therefore, take benefit of the law laid down in the said cases. As for the cases cited by learned counsel for the respondent, no application was made in the cases of Muhammad etc. and Abdul Rahman and another stating that the date of completion of copies was not intimated to the parties applying for them and, therefore, extension of time was not allowed. In the case of Din Muhammad sufficient reason for extension of time beyond the date on which copy was ready in the Copying Agency was not shown. It was, therefore, held that such extention could not be allowed on the strength of Gul ‑Muhammad's case. In the case of Ghulam Ali and another it was submitted, during the course of arguments, that intimation regarding completion of the copies was not given but the plea was not accepted as no application or affidavit was filed in this respect. In the case of Fateh Muhammad and others, petition for Special Leave to Appeal was filed with delay. By giving explanation that the petitioners were not informed of the date when copy of the impugned order, dated the 8th October, 1973 would be ready, it was submitted that "time‑lag between 13th December, 1973 when the copy was ready and 26th July, 1974 on which day petitioners received it, 'be exempted in calculating the period of filing the petition for Special Leave to Appeal". this explanation was not accepted by the Supreme Court for the following reasons and the petition was dismissed as time‑barred:‑ " It is well‑settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which he could not by due diligence be avoided, can form part of time 'requisite' for obtaining the copy. The time between the date on which the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time 'requisite' for obtaining a copy. The question then is whether the delay be condoned under the provisions of section 5 of the Limitation Act, 1908. In this behalf it would be seen that the order of the High Court having been announced on 8th October, 1973, petitioners had sixty days to file this petition, excluding the time requisite for obtaining copy of the order. They are presumed to know that delay of each day, after expiry of the prescribed period of limitation, unless satisfactorily explained, is fatal. They made application for supply of copy on 5th November, 1973. By then 28 days had already lapsed. The copy was ready on 13th December, 1973, after 39 days, the last date for filing this petition, therefore, was the 15th January, 1974. However, the petitioners received the copy on 26th January, 1974 and by then the period of limitation had already expired. This should have been enough warning that no further time is to be lost, and instead of filing the petition immediately thereafter, they did not file it until 25th of February, 1974." In the present case also, the copies were received by the petitioner on 16th May, 1975 but the appeal was not filed immediately thereafter. It was preferred on 9th June, 1975 after about 24 days of the delivery of the copies. There is no explanation whatsoever for this delay of about 24 days. In the case of The Muslim Commercial Bank Limited, application was submitted stating that the appellant was not informed of the date when the copies were ready but this plea did not find favour with the Court. In the instant case, however, as held earlier, no assertion in this behalf was made in any manner. Looked from any angle, the petitioner cannot, therefore, get over the difficulty of limitation. It was also conceded by learned counsel for the petitioner that in order to get extension of time upto the date of delivery of the copies it was essential for the petitioner to assert before the learned Additional District Judge that the date on which the copies were ready was not intimated to him and if he had not done so, he would not be entitled to such extension.

11. As I have found that the petitioner did not make an assertion before the learned Additional District Judge that he was not given intimation with regard to the date on which the copies were ready for delivery, it is not necessary for me to examine the question whether he could have the benefit of such assertion without making an application, under section 5 of the Limitation Act, and filing affidavit in support thereof. I will, therefore, not express any opinion on that question.

12. What emerges from the above discussion is that since it was not asserted by the petitioner, before the learned Additional District Judge, that no intimation regarding completion of the copies was given to him, the time requisite for obtaining the copies came to an end on the date when the copies were ready for delivery and as such his appeal was clearly time‑barred. In this view of the matter, the learned Additional District Judge was perfectly justified in l dismissing the appeal on the ground of limitation. The present revision, therefore, fails. It is, accordingly, dismissed with costs. M.B.A./C‑3/L Revision dismissed.