P L D 1974 Supreme Court 344 (PLP)

"After careful consideration of the points raised in the present appeal, I am of the view that the law enunciated in the cases of Jijibhoy N. Surty v. T. S. Chettyar A I R 1928 P C 103, and Punjab Co operative Bank Ltd.. Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. A I R 1941 Lah. 257, is correct and the principles laid down‑in them should have been applied to the facts of the present case." It will thus be seen that the order under appeal was overruled and the decision of the Privy Council in the case of Jijibhoy N. Surty v. T. S. Chettyar and the Full Bench decision of the Lahore High Court in Punjab Co operative Bank Ltd., Lahore v. Official Liquidator, Punjab Cotton Press Co. Ltd., was found to be correct and apply on the facts of the present case. Mr. Khalilur Rahman has further referred us to a decision of this Court in the case of Syed Falz All Shah v. Chief Administrator of Auqaf, Lahore (P L D 1974 S C 17), in which the view of the Full Bench of the Lahore High Court in the above second mentioned case and the view of the West Pakistan High Court, Karachi seat, in the case of Karachi Municipal Corporation v. Messrs Karimi & Co. (P L D 1967 Kar. 557) was approved. It is thus quite clear that the view of the Lahore High Court in Hari Ram v. Prem Nath and the view of the West Pakistan High Court, Baghdadul Jadid, in the case of Ghulam Hussain v. Ghulam Muhammad, which is under appeal is not in accord with the view expressed by this Court in the above two decisions of this Court. The appeal, therefore, has to be accepted on the law already laid down by this Court in Wall Muhammad and others v. Wall Muhammad and others. Mr. Ghias Muhammad, learned counsel for the respondent, was unable to satisfy us that the view taken by this Court in Wall Muhammad's case, overruling the decision of the West Pakistan High Court in Ghulam Hussain's case and of the Lahore High Court in Hari Ram's case, was not correct. He has, on the other hand, argued that the decision of this Court in the . above first mentioned case, treating the order as a judgment is not correct and that as section 12 (3) of the Limitation Act does not apply to the facts of the present case, section 12 (2) should not have been made applicable and should not be applied in the present case. In support of his contention he has relied on Ghulam Haider and another v. Abdul Ghana and others (P L D 1949 Lah. 570), Gulab Chand v. Peary Lal (A I R 1935 All. 99), Lakshaman and others v. Peryasaml (10 Mad. 373), Rajah Kotagiri Venkota Subbamma Rao v: Rajah Yellanki Venkatrama (27 I A197). The case of Ghulam Haider was considered in Wali Muhammad and others v. Wali Muhammad and others. The case of Gulab Chand is on the same lines and does not ',lay down a different principle. The Lahore High Court in Ghulam Harider's case came to the following conclusion ;‑ "The language of subsection (2), as it now stands, when contrasted with subsection (3) clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal. We are, therefore, of opinion that the time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for an application for leave to appeal to his Majesty‑in‑, Council." As stated in the case of Wali Muhammad, in this case, the judgment of the Lahore High Court in Hari Ram v. Prem Nath was noticed in which it was held that section 12 of the Limitation Act did not apply to an applica tion for leave to appeal to his Majesty in Council, it being unnecessary for the applicant to file a copy of the decree or judgment with the application. However, this aspect of the question was left open and the learned Judges did not express any opinion on this point and made the following. observa tion:‑ "In this case, the learned Judges have gone a step further in holding that even subsection (2) of section 12 does not apply to an application for leave to appeal to His Majesty‑in‑Council. But the question is not before us as it is conceded that the applicant never applied for a copy of the decree sought to be appealed from. It is, therefore, unnecessary for us to express ‑any opinion on this aspect of the question." This Court considered the case of Ghulam Haider v. Abdul Ghana ands others and came to the conclusion that subsection (3) of section 12 of them Limitation Act is not attracted to the case under consideration. It applies! where a decree is appealed from or sought to be reviewed. It does not apply where an application for leave to appeal is made. It will thus be noticed that the view expressed in Ghulam Haider's case. was not departed from. This Court c e to the conclusion that section 12(2) of the Limitation Act applies to the facts of that case. Section 12 of the Limitation Act reads as under :‑ "Section 12.‑(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pro nounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from, or sought to be reviewed shall be excluded. (3) Where a decree is appealed from or sought to be reviewed the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. (4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. It will be noticed that subsection (2) of section 12 applies for application for leave to appeal and under that subsection, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. Before dealing with the argument of the learned counsel for the appellant, it will be proper here to consider the contention of Mr. Khalilur Rahrnan that subsection‑ (3) of section 12 applies to the present case. ‑In support of his contention, the learned counsel has referred to a decision ‑of the Full Bench of the Allahabad High Court in Baldeo Pershad v. Dwarika Pershad (AIR 1957 All. 334). In that case, the decision of the Allahabad High Court in Gulab Chand v. Peary Lai was overruled. Mr. Khalilur Rahman contended that this Court should reconsider its decision about the application of subsection (3) of section 12 of the Limitation Act in the light of the above decision of the Full Bench of the Allahabad High Court. In that case, it was held as under :‑ " Prima facie there is no reason why the words "decree appealed from" should have a more restricted meaning in subsection (3) than they have in subsection (2) of section

12. These words should be held to include a decree against which a person seeks leave to appeal. Any doubt that the words `decree appealed from' include a decree against which a person seeks leave to appeal is resolved by a reference to Arts. 179 and

170. Under these Articles in each case, time begins to run from the date of the decree appealed from". It follows therefore that in computing the period of limitation for an application for leave to appeal to the Supreme Court, the time requisite for obtaining a copy of the judgment complained of must also be excluded." I have considered this decision and in my opinion, the reasoning given in the case of Ghulam Haider v. Abdul Ghani, is correct. I am also of the view that the language of subsection (2) when contrasted with sub section (3) clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal. I am, therefore, not inclined to change the view expressed by me in the case of Wall Muhammad and others v. Wali Muhammad and others. Coming now to the facts of the present case, there is no doubt in my mind that subsection (2) of section 12 of the Limitation Act applies to ~ the present case. Subsection (2) of section 12 of the Limitation Act provides that in computing the period of Limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought the reviewed shall be excluded. Admittedly, in the present case, the appellant applied for obtaining a copy of the decree on the 9th April 1964, and it was supplied to him on the 15th July 1964. The application was made under sections 109 and 110, C. P. C. on the 6th October 1964. If the time taken in obtaining the copy of the decree is excluded, the application under sections 109 and 110, C. P. C., is within time. In my view, therefore, the High Court should have excluded the time taken in obtaining the copy" of the decree and should have held that the application under sections 109' and 110, C. P. C., was within time. On this view, it is not at all necessary for me to consider whether the words "order" and " judgment" are inter changeable and the word "order" referred to in subsection (2) of section 12 also includes judgment. As arguments were advanced on this aspect of the case also, the argument of Mr. Ghias Muhammad that there is a distinction between order and judgment used in subsection (2) of section 12 of the Limitation Act, has received my anxious consideration. Mr. Ghias Muhammad has himself referred to a decision of the Privy Council in General Accident Fire & Life Assurance Corporation v. Janmahomed Abdul Karim (A I R 1941 P C 6). In that case, their Lordships of the Privy Council held that the Limitation Act should receive such, a construction as the language in its plain meaning imports. In this connection, their Lordships observed as under:‑ "The Limitation Act ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced even at the risk of hardship to a particular party." If the words "order" and `judgment' are considered in this light, in my opinion, they carry the same meaning. According to Shorter Oxford Dictionary, in law, the word "order" means `a decision of a Court or Judge made or entered in writing.' According to the same Dictionary, the meaning of the word "judgment" is `a judicial decision or order in Court.' If these; meanings are taken into consideration, it is quite clear that the two words are inter‑changeable. In the past, this Court has considered the question whether the orders of the High Court in Letters Patent Appeals are judg ments or not and it has held that such orders are judgments. Reference in this connection may be made to Mumtaz Khan v. Chief Settlement & Rehabilitation Commissioner (P L D 1966 S C 276). It was held in that case that in the general connotation of the term, a "judgment" would merely mean a "judicial deter mination or a decision of a Court" and it could be interlocutory or final. In that case, the learned Single Judge of the High Court had actually passed an order which finally decided the rights of the parties in respect of an evacuee house. It was held to be a judgment in every term of the case. It was held that it was clearly rendered in a proceeding of a civil nature gas rights of property were adjudicated upon. It will be further noticed that in another case, the report of the Election Tribunal was considered by this Court as "Judgment" in Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C (Pak.) 91). It was held as under:- "The Election Petitions Tribunal has functioned as a Court and that its report is a judgment in every sense necessary for the exercise of this Court's power to entertain appeals under Article 160 of the Constitution." On this view of the matter I am of the opinion that the word "judgment" covers order and the word `order' also means in general sense a judgment. In these circumstances, the time taken for obtaining a copy of a judgment was rightly excluded in the case of Wali Muhammad and other v. Wali Muhammad and others. In the result, I will hold that the application of the applicant under sections 109 and 110, C. P. C., was within limitation. I would, therefore, accept the appeal and send back the case to the High Court for decision on merits. In the circumstances of the present case, the parties are left to bear their own costs. HAMOODUR RAHMAN, C. J.‑I agree. SALAHUDDIN AHMED, J.‑I agree. MUHAMMAD GUL, J.‑I agree. S.A.H. Appeal accepted: