2016 PLP 1979 (SCMR)

UMAR ATA BANDIAL, J.

This petition challenges the judgment of the learned Division Bench of the Lahore High Court dated 06.04.2016 whereby the appeal filed by the petitioner under section 124(2) of the Insurance Ordinance, 2000 ("Ordinance") against the order of the learned Insurance Tribunal ("Tribunal") dated 03.10.2012, has been dismissed as being time barred. Section 124(2) of the Ordinance provides that an aggrieved party may prefer an appeal against the decision of the Tribunal "to the High Court within a period of 30 days from the date of such decision." (emphasis supplied). Section 123(5) of the Ordinance specifically provides that the Tribunal shall provide a copy of its decision to each party. The petitioner filed its appeal under section 124(2) of the Ordinance on 03.11.2012 by appending an uncertified copy of the decision of the Tribunal dated 03.10.2012. The appeal was filed with a delay of one day on which ground it was dismissed by the learned High Court through the impugned judgment.

2. Learned counsel for the petitioner has informed that 28 days after the Tribunal's decision dated 03.10.2012, the petitioner on 31.10.2012 also applied for its certified copy. That stopped the limitation period from running because under the provisions of section 29 of the Limitation Act, 1908 ("Act"), section 12 of the Act became applicable to the filing of petitioner's appeal before the High Court. Section 12(3) of the Act provides as follows: "

12. Exclusion of time in legal proceedings. (1) .... (2) .... (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a certified copy of the judgment on which it is founded shall also be excluded."

3. He has relied upon the judgment of this Court in Ali Muhammad v. Fazal Hussain (1983 SCMR 1239), Chairman, Distt. Evacuee Trust Committee v. Sharif Ahmad (PLD 1991 SC 246) and Hafeez Ahmad v. Civil Judge, Lahore (PLD 2012 SC 400) to support his plea that for the purpose of determining any period of limitation prescribed by a special or a local law, the provisions of section 4, sections 9 to 18 and section 22 of the Act shall apply to the extent to which these have not been expressly excluded by the special or local law. Section 12 of the Act has not been excluded or modified by the Ordinance for application to appeals filed under section 124 thereof. Section 12(3) of the Act provides for computing the limitation period after excluding the time requisite for obtaining certified copy of the judgment impugned in appeal.

4. As a result the remaining time of 2 days resumed to run again when a certified copy of the Tribunal's decision became available for delivery. Although promised to be ready on 08.11.2012, the certified copy of the Tribunal's decision was prepared and made available on 16.11.2012. Therefore, it is argued that pursuant to the provisions of Section 12 of the Act, the limitation period got extended beyond the date on which the petitioner's appeal was filed on 03.11.2012 until its exhaustion 2 days after 16.11.2012. Hence, the same was not time barred when originally filed on 03.11.2012.

5. On the other hand, learned counsel appearing for the respondent submits that the appeal under section 124 of the Ordinance may be filed without a certified copy of the impugned decision of the Tribunal. In the present case, the petitioner's appeal was entertained for that very reason because copy of the decision handed over to the petitioner under section 123(5) of the Ordinance was attached to the memorandum of appeal. However, on 08.11.2012 the petitioner's appeal was returned under an office objection which is presently not relevant. The petitioner did not remove that objection until 05.12.2012. As such re-filing of the appeal by the petitioner on 05.12.2012 is so grossly delayed beyond 16.11.2012 when the certified copy of the Tribunal's decision was ready that its adds to rather than curing the one day's delay in the first filing of the appeal on 03.11.2012. Even if section 12 of the Act is deemed to apply to the proceedings of the Appellate Court under the Ordinance, the petitioner had 30 days from the date of the Tribunal's decision for filing his appeal. After excluding 28 days delay caused by the petitioner in applying for certified copy on 31.11.2012, the petitioner had two days time remaining to file his appeal after the receipt of certified copy of the Tribunal's decision. Since certified copies were ready for collection on 16.11.2012, the petitioner ought to have refilled his appeal on or before 18.11.2012 in order to avoid the objection of limitation. Consequently, by any account, the petitioner's appeal is time barred.

6. We have heard the learned counsel for the parties and have also carefully perused the record. The question of law posed by the learned for the petitioner, namely, the applicability of section 12 of the Act (pursuant to the provisions of section 29 thereof) to the filing of an appeal under section 124 of the Ordinance, which is a special law, does not arise for determination in the present case. The three judgments relied by the learned counsel for the petitioner pertain respectively to appeals filed from an eviction order, from an order passed by Settlement Officer and an order challenged under section 115, C.P.C. in the revisional jurisdiction. The said case law pertains to the proceedings of appeal or revision that must be filed under the respective laws with the support of a certified copy of the order impugned.

7. In the present case, it is evident from the provisions of section 124(2) of the Ordinance read with section 123(5) thereof, that there is no requirement for filing certified copy of the Tribunal's decision along with the appeal thereagainst. Consequently, when the petitioner selected the course of filing his appeal with the aid of an uncertified copy of the Tribunal's decision, which was already available with him on 03.10.2012, it is clear that starting point of limitation was the date on which the petitioner had knowledge of and was handed over a copy of the decision by the Tribunal. It is not disputed that the petitioner was aware of the Tribunal's decision and had received copy thereof on 03.10.2012. Accordingly, the appeal filed by the petitioner on 03.11.2012 was time barred.

8. The principle of section 12(3) of the Act stands excluded from application to the present facts by the petitioner's own conduct. Had the petitioner postponed the initial filing of the appeal until after the receipt of the certified copy of the impugned decision, the petitioner may have urged a plea under section 12(3) of the Act. However, such a plea is also not available to the petitioner because he was indolent to delay until 05.12.2012 the re-filing of his appeal (already returned on 08.11.2012 under an office objection). In fact, based on the strength of the certified copy ready for issuance on 16.11.2012, the computed period of 30 days limitation expired on 18.11.2012. In these circumstances, the appeal re-filed by the petitioner before the learned High Court on 05.12.2012 was time barred from any perspective. For the foregoing reasons, we do not find any merit in this petition, as such leave to appeal is refused and the same is dismissed accordingly. MWA/J-4/SC Petition dismissed.