P L D 1966 (W (PLP)

ANWARUL HAQ, J.‑This is an application for leave to appeal to the Supreme Court against a judgment delivered by a Division Bench of this Court on the 3rd of April 1964 in R. F. A. No. 6 of 1962 (BWP). A preliminary objection has been raised on behalf of the respondent that the application is barred by time.

2. The relevant dates are' these. As already stated, the judgment was delivered on the 3rd of April 1964. The petitioner applied for copies of the judgment and decree on the 9th of April 1964 and the copies were ready on the 15th of July 1964, i.e., after 97 days. However, the copies were not collected by the petitioner until the 21st of July 1964, and the present application was filed on the 6th of October 1964. It was returned to the applicant for removing some objection pointed out by the office, and it was re‑filed on the 10th of October 1964. Again, there was an objection and after the removal of this fresh objection the application was re‑submitted on the 12th of October 1964. The contention is that even if the application be treated as having been filed on the 6th of October 1964, it was beyond the period of limitation for the reason that under the rules applicable to such applications it is not necessary to file copies of the judgment and decree with the application, and in fact no such copies have been filed with the present application. It is submitted that in these circumstances the question of excluding any period spent in obtaining copies of the judgment and decree does not arise at all.

3. The period of limitation in this case is 90 days as prescribed by Article 179 of the First Schedule to the Limitation Act. If 97 days spent in obtaining copies of the judgment and decree are excluded, then the application would be within time- The question, therefore, is whether this period can be excluded or not.

4. The question regarding the application of section 12 of the Limitation Act to an application for leave to appeal to His Majesty in Council came up for consideration before a Division Bench of the Lahore High Court in the case of Hari Ram v. Prem Nath and others (A I R 1935 Lah. 341) and it was held that "where it is not necessary for the applicant to file a copy of the decree with the grounds of appeal or the application, section 12 has no application and the period between the delivery of the judgment and the signing of the decree cannot be excluded".

5. A similar question fell for consideration by another Division Bench in the case of Ghulam Haider and another v. Abdul Ghani and others (P L D 1949 Lah. 570). In that case again the contention raised before their Lordships was that section 12 of the Limitation Act did not apply to an application for leave to appeal to His Majesty in Council and, therefore, the petitioner was not entitled to the exclusion of time which was spent in obtaining a copy of the judgment. Having noted this contention their Lordships added: "In our opinion, this contention is well founded." Then they proceeded to draw a distinction between subsections (2) and (3) of section 12 of the Limitation Act and came to the conclusion that "the language of subsection (2) as it now stands, then 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." This conclusion was sufficient for deciding the case before their Lordships for the reason that the prayer made was for the exclusion of time taken in obtaining a copy of the judgment alone, as a copy of the decree had not been filed. However, they also noticed the earlier decision in Hari Ram's case and observed that "in this case the learned Judges have gone a step further in holding that even sub section (2) of section 12 does not apply to an application for leave to appeal to His Majesty in Council. But this 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".

6. It seems to us that the decision in Hari Ram's case still holds the field in so far as the question of application of section 12 of the Limitation Act to applications, for leave to appeal to His Majesty in Council, now to the Supreme Court of Pakistan, is concerned. The only contrary decision cited before us is the one in Gaekwar, Baroda State Railway, Baroda v. Muhammad Habib Ullah and others (A I R 1935 All. 258). The question in that case was regarding the exclusion of the time spent in obtaining a copy of the decree. The contention on behalf of the respondent before the Court was that a copy of the decree was not requisite, as was shown by the fact that the application for leave to appeal was filed on the 6th of April, whereas the copy of the decree was not obtained until the 20th of April: The argument was sought to be built upon an observation of their Lordships of the Privy Council appearing in Jujibhoy N. Surty v. T. S. Chettyar (A I R 1928 P C 103) to the following effect:‑

"If indeed it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite." After referring to this observation the learned Judges proceeded to observe that at the time 'the application was made for copies of the judgment and decree, it was not known that only the copy of the judgment would suffice as it would give all the necessary information on the basis of which the application could be filed. They, therefore, concluded that at least the time taken from the date the application for copies was made and the date on which the copy of the judgment was supplied, which date was earlier than the preparation of the copy of the decree, should be excluded. A perusal of this judgment makes it clear that the question whether section 12 of the Limitation Act applied or not was not decided in the light of the relevant rules governing the institution and disposal of applications for leave to appeal to His Majesty in Council; on the contrary the matter was decided on different considerations' namely, whether the copy of the judgment itself disclosed sufficient information to the applicant for drawing up the application for leave to appeal.

7. We have also perused the judgment of their Lordships of the Privy Council in the case of Jijibhoy N. Surty and we find that although their Lordships ultimately came to the conclusion that section 12 of the Limitation Act makes no reference to the Code of Civil Procedure or to any other Act and it does not say why the time is to be excluded, but simply enacts it as a positive direction, yet they did go on to make the observations to which reference was made by the learned Judges of the Allahabad High Court in the case of Gaekwar, Baroda State Railway, Baroda. In other words, it will be seen that even their Lordships of the Privy Council did envisage a class of cases where the time requisite for obtaining copies of the judgment and decree may not be excluded for the reason that filing of these two documents was not requisite. Now, in the instant case the rules under which the present application is governed are contained in Chapter 8‑A of Volume V of the High Court Rules and Orders and there is no requirement in these rules that the copies of the judgment and decree should be filed along with the application for leave to appeal. In fact, as already stated, no such copies have been filed with the present application. There is good reason for this rule as the application for leave to appeal is presented in the same Court which has delivered the judgment and which accordingly does not need any elaborate explanation to be embodied in the application for leave to appeal. Further, the original records are also available to the Court, as is the case before us. Finally, it is also to be noted that at least since 1935 the practice of the Lahore High Court, of which the High Court of West Pakistan is a successor, has been that no such copies are filed along with such applications and the time requisite for obtaining such copies is not excluded. Taking all these circumstances into account, we have no hesitation in following the dictum in Hari Ram's case, viz. that section 12 of the Limitation Act does not apply in the case of applications for leave to appeal to the Supreme Court.

8. As a result, we are bound to hold that the present application is barred by time and it is accordingly dismissed as such with costs. K. B. A. Application dismissed.