1998CLC590 (PLP)

Ibrahim v. Muhammad Hussain PLD 1975 SC 457 rel. Fazal‑e‑Miran Chauhan for Appellant. C. A. Rehman for Respondents. Dates of hearing: 30th June and 1st July, 1997 The relevant facts for the decision of this second appeal are that the respondents filed a suit for specific performance of agreement. The suit was contested and the trial Court accordingly framed issues, recorded evidence and after hearing the arguments proceeded to decree the suit vide judgment, dated 7‑4‑1972, which was assailed through an appeal before the District Judge, Gujranwala. The respondents filed an application for dismissal of the appeal being time‑barred. Mr. Salah‑ud‑Din, the then District Judge framed following issues:‑‑ (1) Whether the appeal is within time according to law? The first appellate Court after framing this issue remitted the file to the learned Civil Judge, Wazirabad for holding an inquiry and giving findings on this issue. The learned Civil Judge accordingly recorded statements of Muhammad Nazar as A. W.1, Ghulani Hussain as A. W. 2 and Inayat Ullah, respondent No.1 as A.W.3. They also produced certified copies of judgment and decree obtained by the respondent. The learned Civil Judge after hearing the arguments concluded that the certified copies of the judgment and decree subject‑matter of the appeal were ready on 11‑4‑1972 and the attestation of the same was obtained on 5‑5‑1972 with the collusion of the copyist in order to bring the appeal within time. The learned District Judge after perusal of this report proceeded to allow the application and dismiss the appeal as time‑barred vide judgment and decree dated 7‑3‑1974, which was assailed through this appeal. The same was admitted to hearing and notices were issued to the respondents, who have appeared and contested the appeal.

2. The learned counsel for the appellant argued that the District Judge has no power to send the matter to the learned Civil Judge because the same was within his exclusive jurisdiction and not the subject‑matter of the suit. It is added that the findings are just conjectural in nature and not based on facts on record. It is argued that in case the copies had been prepared earlier then the Copying Branch was under legal obligation to inform the appellant. In this behalf the learned counsel has referred to the case of Mu hammad Afzal Khan Lodhi v. Islamic Republic of Pakistan (PLD 1968 Lah. 1205). It is argued that the time taken till the copy was prepared would be counted as time requisite for supplying of copy under section 12, of the Limitation Act, therefore, the same is to be excluded from consideration while reckoning the period of limitation. The learned counsel in this behalf has referred to the judgments reported as West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555; Mt. Bibi Fakhrunissa v. Rambhanjan Singh AIR 1919 Patna 38; Rudra Pratab Singh v. Raghuraj Gir AIR 1914 Oudh 244; Ghulla Singh v. Sohan Singh and others AIR 1922 Lah. 219; Mani Singh v. Anand Parkash AIR 1936 Lah.

693. It is added that the copying fee charged from the appellant and the respondents are quite different, therefore, it cannot be presumed that the copies of judgment and decree supplied to appellant were also prepared while preparing the copies of the respondents.

3. On the other hand, the learned counsel for the respondents argued that if both the copies (marked 'A & B') are compared then it is proved that the copies supplied to the appellant and appended by him with the memo. of appeal before the first Appellate Court were carbon copies of the copies supplied to his clients. This fact is further proved by the correction made with pen in both the copies. It is argued that the copies were ready on 12‑4‑1972 and only in order to bring the appeal within time the date of preparation was given as 5‑5‑1972. It is added that since the appellant was the beneficiary, therefore, it would be presumed that this was done with his collusion. He is guilty of cheating. It is argued with reference to the inquiry by the Civil Judge that every procedure, which is not specifically barred under C.P.C. or under other law, is permissible. It is added that it is not otherwise that every procedure should be provided for in the law. In this behalf reference is made to section 151, C.P.C. and reliance is placed on the case of Narsingh Das v. Mangal Dubey and others (ILR 5 (1882) Allahabad 31).

4. The learned counsel for the appellant while summing‑up the arguments submitted that according to para. No.5 of the application moved by the respondents before the first Appellate Court there was no allegation of collusion or mala fide and there is no evidence whatsoever on the record to prove any manoeuvring made by the appellant. He referred to section 12 of the Limitation Act to argue that presumption of truth is attached to the certificate given at the end of the certified copies.

5. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record and precedent cases. The first question which falls for determination is whether the District Judge could entrust the inquiry to the learned Civil Judge? The relevant provisions are contained in section 107, Order XLI, Rules 23, 23‑A, 24 and 25, C.P.C. The present case was not covered by any of the above provisions. Order XLI, C.P.C. deals with the resettling of the issues and decision of the appeal on merits while Rule 25 prescribed that the Appellate Court may frame issues and refer them for trial to the trial Court and may direct to take additional evidence. The trial Court was required to try such issues and return the evidence to the Appellate Court together with its findings thereon. Whereas the present controversy pertained to appeal being within limitation or not. This was exclusively within the jurisdiction of the Appellate Court, therefore, the matter could not have been referred to the Trial Court. It is made clear that the matters arising out of the suits could legitimately be referred and not others. It amounted to delegating its powers to the Trial Court, which was not legally possible.

6. Now coming to the legal position whether the appeal was time‑barred or not? The learned counsel for the appellant argued that there is a presumption of correctness attached to the certificate given by the Copying Branch as per section 80 of the Evidence Act, 1872 (Article 90 of the Qanun‑e‑Shahadat, 1984). It is relevant to mention here that none of the dates is illegible, tampered with or overwritten. The dates of preparation, attestation and supplying of the copies have clearly been given as 5‑5‑1972. The argument on behalf of the respondents is that the copies of the judgment and decree supplied to the appellant as well as to them were typed out at one and the same time. According to section 12 of the Limitation Act the time requisite for obtaining the copy of the decree is to be excluded. The point for determination is whether typing out of the copy or making its photostat copy nowadays, makes the same ready for delivery to the parties, which had applied for certified copy? The answer is in negative. Making out a copy by typing or photostat machine is not enough. The same has to be compared, attested, the costs of copy worked out and then necessary certificate appended at the end of the document, therefore, unless and until the typed copy was not attested by the Officer authorised at the relevant time under section 78 of the Evidence Act, 1872 the copy could not be treated ready for delivery.

7. I have compared both the certified copies mark A and B. It is correct that the copies supplied to the appellant is the carbon copies of the copies supplied to the respondents. In 1972 the photostat machine had not come into existence and the copies were prepared either by typing out or were handwritten and the Copying Department would normally ensure that it has not to type out or scribe the same judgment time and again. The Court can take judicial notice of this practice. In this case what seems to have happened was that the appellant applied for copies on 7‑4‑1972 and his application was registered at No.917 while the respondents made application on 10-4-1972 which was registered at No.922. They obtained the copies on 11‑4‑1972. It is clear from the facts on record that the respondents were in hurry to secure the certified copies and for that reason they got the copies prepared and received on the next day. The purpose either was to initiate the execution proceedings or they have planed to make the appeal of the appellant time‑barred. While the date given to the appellant for collection of the certified copy has not come on record directly or indirectly. The learned District Judge has drawn adverse inference for his failure to produce the receipt issued by the Copying Branch but failed to notice that the same is collected back by the Copying Agency while issuing the certified copies in any case the appellant was not supposed to preserve the receipt even after securing the copies, The learned counsel has referred to Rule 1,39 of the Copying Rules but the same is not relevant because it referred to the receipt as to the delivery of copies, which is to be obtained on the each of the application for copy. The respondents while moving learned District Judge for dismissal of the appeal as time‑barred ignored copying rules and procedure followed by the Copying Agency. If looked from this angle their application was without any basis and was liable to be rejected summarily,

8. There is yet another factor, which could not be ignored because no party should suffer on account of the acts of the Court or its officials. In this behalf reference can be made to the judgments reported as The State v. Asif Adil and others (1997 SCMR 209) and Ghulam Haider and others v. Mst. Rai Bharri and others (PLD 1988 SC 20). The learned District Judge further committed irregularity in dismissing the appeal only on the ground of limitation because the Hon'ble Supreme Court has more than once discarded the practice of fragmentary decisions. He should have decided the appeal on merit also in order to avoid the remand. The result is that the appeal filed in 1972 is yet to be decided on merit. In this behalf, we may refer to the case of Ibrahim v. Muhammad Hussain (PLD 1975 SC 457).

9. The upshot of the above discussion is that this appeal is accepted. The result is that 1st appeal would be deemed pending before the learned District Judge, Gujranwala, who is directed to decide the same expeditiously in any case by 30th September, 1997. A.A./B‑22/L Appeal accepted