P L D 1991 Supreme Court 155 (PLP)

ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal through leave of the Court has arisen in the following circumstances:‑‑ A decree for possession was passed in favour of the appellants on 18‑4‑1963. On appeal the District Judge Mianwali, set aside the judgment and decree and dismissed the suit of the appellants on 30‑10‑1963. The appellants submitted an application by registered post on 23‑12‑1963 for getting certified copy of the judgment and decree passed by the learned District Judge. The receipt of the registered letter bears No.117 dated 23‑12‑1963. The Copying Branch registered it on 2‑1‑1964. In the application for supply of copy, the date of judgment was mentioned as 16‑10‑1963 instead of 30‑10‑1963 and due to this reason the application was returned with the objection on 6‑2‑1964. According to the appellants, the same day the application was re‑submitted after correcting the date of decision. The certified copies were supplied on 8‑2‑1964 which were received by the counsel for the appellants on 13‑2‑1964. The appellants filed a Regular Second Appeal on 10‑3‑1964. Alongwith the appeal, an application under section 5 of the Limitation Act for the condonation of delay was filed claiming exclusion of time from 23‑12‑1963 to 8‑2‑1964. The learned High Court dismissed the appeal on 5‑7‑1964 as barred by time. The learned High Court while considering the contention of the appellant With regard to the condonation of delay, observed that: "There is, however, no proof on the record that the application for copy was sent by registered post on the 23rd December, 1963. This is a matter which could not be proved except by primary evidence." The assertion of the appellants was not repudiated by the respondents therefore the -statement of the appellants could be accepted. Even otherwise, the learned High Court could make a summary inquiry in the matter after summoning the record from the Copying Agency in order to find out whether contention of the appellants is supported by the documentary evidence. The dismissal of the appeal on the ground of limitation merely on a technical reason could have been avoided. The appellants under the rules could send application for obtaining copy of the judgment through post. If there was wrong mention of B the date of judgment and the Copying Agency had either summoned the record or verified it from the Courts concerned, this technical error could have been corrected by the Copying Agency itself. The application was submitted within time. The same was sent back to the appellants for correction of the date of decision, the mistake was rectified and the appellants resubmitted it. The appellants were diligently prosecuting their case and there was no negligence on their part. As such, the view taken by the High Court cannot be maintained as the time spent by the appellants in obtaining copy in the circumstances stated above, should have been excluded. Learned counsel for the respondents referred to Punjab Province v. M.Nurullah PLD 1957 (W.P.) Lahore 370 and Muhammad Khan v. Fatma Bai A.I.R. 1930 Nagpur 129, in support of his contention that such time spent for the correction of date of judgment in the application could not be considered as time requisite for obtaining copy. We do not consider that the two cited cases have enunciated the correct proposition of law. This Court in Federation of Pakistan v. Mrs. Riaz Latif PLD 1990 SC 90, has referred to the Copying Agency Manual. An applicant may also at his option ask that the copy be sent to him by V.P.P. Finally , it was observed that "Rules do confer a right on the applicant to obtain certified copy by V.P.P. and makes it obligatory on the Copying Agency to comply with the request. The responsibility of the Copying Agency could not have been made the responsibility of the party nor should the party be penalised for the non‑observance of the requirement of the rules by the Copying Agency". In Muhammad Aslam v. Hameed Ali PLD 1978 Lahore 293, in the similar circumstances it was held that "it cannot be visualised that when the process for supply of copy had commenced but had not yet concluded, the latter circumstance would disentitle the appellant from counting this period towards the period requisite for obtaining the copy. It was also observed in Paras 7, 8 and 9 of the judgment as under:‑‑

7. There is another aspect of the matter. The appellant was not at fault in so far as the supply of wrong copy by the Copying Agency is concerned. As mentioned above, he took steps to seek correction. This shows his bona fides. The learned Addl. District Judge should not have returned the incorrect copy. The endorsement by the Copying Agency made thereon showing various dates including that of application and preparation of the copy, if would have been duly considered by the learned Additional District Judge, the appeal would not have been held to be time‑barred.

8. There is yet another circumstance which. goes in favour of the appellant. The Copying Agency in District Courts is a part of the judicial administration. If the learned Additional District Judge wanted to check certain facts from the Copying Agency, he could have done so before dismissing the appeal. The fault of the Copying Agency, which is a part of the Court's machinery, cannot be made the basis of penalizing the appellant. The principle that no one shall suffer on account of act of Court would at least indirectly apply in this case. For what has been stated above it is held that the appellant was entitled to adjust the period from 24‑12‑1969 upto the filing of the appeal i.e. 10‑2‑1970 in counting the period of limitation. That being so, the appeal was not time‑barred.

9. The foreoging discussion would show that the period between making of the application for copy on 24‑12‑1969 and filing of the appeal on 10‑2‑1970 has to be excluded as period requisite for obtaining copy. The exclusion of the period is, as of right, under section 12 of the Limitation Act. There was no question of condonation and thus there was no need for moving an application under section 5 of the Limitation Act. The two cases cited by the learned counsel for the appellant in this behalf, namely, Qalandar Shah and others v. Imdad Ali Shah and others P L D 1962 Azad J & K 21 and Messrs Aftab Medical Stores v. Commissioner of Income‑tax PLD 1976 Lah. 1330, support him in so far as they go, on analogical basis. In view of the clear provisions of section 12 of the Limitation Act, it is not necessary to discuss any further the case‑law in this behalf." In the result, we hold that the appeal filed by the appellants was within time. The appeal is, therefore, allowed. The case is remanded to the High Court for decision on merits. There will be no order as to costs. M.B.A/Z‑118/S Appeal allowed.