1990 PLP 1185 (SCMR)

NASIM HASAN SHAH, J.‑‑‑In this case, the question involved is whether the petitioner's appeal before the First Appellate Court (Additional District Judge, Sargodha) was indeed barred by time. The learned Additional District Judge found that although the petitioner was entitled to succeed on merits but could not be allowed the relief as the appeal was time‑barred. The appeal was dismissed accordingly. This view has been upheld by the High Court on revision. The learned Judge in the High Court disposed of this matter as follows:‑ "The only question involved in the present revision petition is as to whether the appeal filed by the petitioners before the Additional District Judge was within time. The suit was decided by the trial Court on 1‑3‑1980. An application for obtaining certified copy of the judgment and decree was filed by the petitioners on 2‑3‑1980 with the Copying Agency at Bhalwal. This application was, however, returned to him on 24th of April, 1980, as it was reported that the record of the case had been consigned to the record room at Sargodha. The petitioners instead of filing the same application before the Copying Agency at Sargodha submitted at fresh application on 27‑4‑1980 on which copies were prepared on 21‑5‑1980 but were received by the petitioners on 2‑6‑1980. The appeal before the Additional District Judge was filed on 12‑6‑1980 and was considered to be barred by time. The delay in filing the appeal was sought to be condoned on the ground that the petitioners were entitled as of right to the time spent by them to obtaining certified copies under section 12 of the Limitation Act, 1908, including the period during which the application for grant of certified copies remained pending with the Copying Agency at Bhalwal. This plea was repelled by the Additional District Judge, who observed that the petitioners were only entitled on deduct the time spent by him in obtaining the certified copies from the Copying Agency at Sargodha. It has been contended by Malik Allah Yar Khan learned counsel for the petitioners that while computing the period of limitation, the petitioners were entitled to deduction of period spent by them in obtaining the certified copies at Bhaiwal and Sargodha as the earlier application was returned by the Copying Agency at Bhalwal for no fault of theirs. The learned counsel for the respondents, of the other hand, has supported the judgment of the Additional District Judge, Sargodha. Under section 12 of the Limitation Act. 1908 while computing the period of limitation, the petitioners arc, as of right, entitled to deduct the "time requisite" for obtaining the certified copies. The period of time which can be considered to be the "time requisite" is the period which has been actually consumed by the Copying Agency for the purpose of supplying the copies filed along with the appeal by the appellant. In the present case, the certified copies were obtained on the basis of application filed by the petitioners on 27th of April, 1980 and were ready for delivery on 21‑5‑1980. It is the only time between 27th April, 1980 to 21‑5‑1986 which has been actually spent in obtaining the certified copies. The petitioners cannot under section 12 of the Limitation Act, 1908 claim the benefit of the period consumed at Bhalwal as the certified copies filed alongwith the appeal were not supplied on the application filed at Bhalwal but on a fresh application filed at Sargodha on 27‑4‑1980:' A perusal of the above observations of the High Court shows that if the; application for the supply of the copies submitted at the Copying Agency at Bhalwal which was returned on 24‑4‑1980 had been presented at the Copying Agency at Sargodha instead of submitting a fresh application on 27‑4‑1980, the appeal would not have been time‑barred and the entire period consumed in obtaining the copies would have been deemed to be "time requisite" for obtaining the certified copies. Thus, the question of limitation has been decided against the petitioners merely because they did not file the same application before the Copying Agency at Sargodha which was filed at the Copying Agency at Bhalwat but submitted a fresh application. This to us appears to make fetish of a technicality. Leave granted. Security in the sum of Rs.2,

500. The appeal shall be made ready on the present record, with liberty to the parties to add further documents, if any and fixed early. A.A./S‑505/S. Leave granted.