P L D 2004 Supreme Court 894 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

Petitioners seeks leave to appeal against the judgment dated 22nd June 2001 passed by Lahore High Court Lahore whereby R.S.A. instituted by the respondent has been treated within time.

2. Precisely stating the relevant facts for disposal of instant petition for leave to appeal are that respondent plaintiff filed a suit for possession of the suit land against the petitioners/defendants by way of pre-emption which was decreed on 24th January 1978 by the Civil Judge Rajanpur Petitioners' predecessor-in-interest filed an appeal which was accepted on 5th June 1978. The respondents instituted R.S.A. No.288 of 1978 which has been allowed by means of impugned judgment dated 22nd June 2001. As such instant petition for leave to appeal has been filed.

3. Learned counsel for the petitioners contended that R.S.A. filed by the respondent before the High Court was barred by time and the reasons assigned by the respondent seeking condonation of delay were not plausible namely the time consumed by the respondent in obtaining certified copy of the judgment of the Civil Judge will also be excluded according to section 12(2) of the Limitation Act because certified copies of the order/decree of the trial Court are required to be appended with the memo. of appeal in terms of Order XLI, Rule

1. C.P.C. Whereas his contention is that time prescribed for filing of appeal is 911 days. against the judgment of the Appellant Court and as far as requirement of filing tile judgment/decree of the Civil Court is concerned it is just procedural and if delay has been caused in obtaining certified cope of the judgment of tile trial Court and tinge has started running beyond 90 days in terms of Article 156 of the Limitation Act then an application under section. 5 of the Limitation Act could be filed seeking condonation of delay instead of claiming enlargement of time under section 12(2) of the Limitation Act

4. On the other hand learned counsel for respondent contended that since it is a mandatory requirement of lair to append certified copy of the judgment/decree of the trial Court with the memo. of appeal before the High Court therefore the time consumed in obtaining tire same shall be condoned under section 12(2) of the Limitation Act.

5. We have heard the learned counsel for both the sides and have also gone through the impugned judgment carefully whereby the delay has been condoned by the learned High Court. In this behalf it is to be noted that according to the mandate of section 100, appeal before the High Court is competent against every decree passed in appeal. The plain reading of this section does not provide that appeal would also be competent before the High Court against the order of the Civil Judge Admittedly under Article 156 of the 1st Schedule of the Limitation Act, 90 days time has been prescribed for filing of appeal under the Code of Civil Procedure before the High Court except in the cases covered by Articles 151/153 and the time of 90 days shall run from the date of order appealed from. Thus it can safely be concluded that when an order of the District Judge has to be appealed against appeal is to be submitted within 90 days notwithstanding the fact as to whether procedure laid down under Order XLI, Rule

2. C.P.C. for preferring the R.S.A. has been followed or not. It is to be noted that this Rule 2 is applicable only within the jurisdiction of the High Court. Undoubtedly a copy of the judgment of the Court of first instance (trial Court) is required to be accompanied with tile memo. of R.S.A. but the tithe in obtaining such certified copy shall not be excluded under section 12(2) of the Limitation Act because provisions of this section indicates that the time in obtaining certified copy shall be excluded in respect of the judgment complained of. Admittedly while submitting R.S.A. the judgment of the Civil Judge/trial Court is not complained of as the appeal is filed against the judgment of District Judge. In this context reference may be made to the case of Kala v. Allah Dad PLD 1977 Lah. 376 and Amir Hussain Shah v. Umra 1998 SCMR 800.

6. Thus for the above reasons it is held that the time spent in obtaining certified copy of the Judgment complained of before the High Court has to be excluded under section 12(2) of the Limitation Act and if any delay is occurred beyond the period of 90 days to filing of R.S.A. for the reason that certified copy of the order/decree was not ready that shall be condonable subject to the provisions of section 5 of Limitation Act and the conclusion drawn by the learned High Court in condoning the delay in the instant case is not tenable in the eye of law.

7. It would also not be out of context to note that in the instant case certified copy of the judgment of the District-Judge against which appeal was filed before the High Court was obtained quite within time. Similarly application for obtaining certified copy of the judgment/decree of the Civil Judge dated 24th January 1978 was submitted on 10th June 1978, which was supplied on 1st July 1978 and as per the requirement of law last date for filing of appeal before the High Court was 11th September 1978 but the respondent did not file appeal despite of having in their possession two necessary documents therefore examining the matter from this angle; as well it can safely be concluded that delay in filing of R.S.A. before the High Court was intentional and not for the reasons beyond the control of the respondent. Thus in view of above discussion, instant petition is converted into appeal and allowed as a result whereof impugned judgment dated 22nd June, 2001 is set aside and the judgment/decree of the Appellant Court dated 5th June 1978 is restored. No order as to costs. M.B.A./L-5/S Appeal allowed.