1985 PLP 1199 (SCMR)

Date of hearing: 19th February, 1985. SHAFIUR RAILMAN, J.‑‑The petitioners who were unsuccessful as defendants in a pre‑emption matter seek leave to appeal against the judgment of the Lahore High Court, dated 28‑11‑1979 whereby the order of the District Judge, the first appellate Court, dismissing their appeal as time‑barred, was upheld. After contest in the trial Court on the 31st of January, 1978 the pre‑emptors obtained a decree in the following terms:‑ "The net result is that the suit of the plaintiff succeeds and stands decreed in their favour as prayed in the concluding para. of the plaint with the following conditions:‑ 'If Naqsha Jhar Padawar and the deficiency in court‑fee as ordered by the Court is not made good by 31‑3‑1978, the plaint shall be considered on 1‑4‑1978 to have been rejected."' The petitioners appealed against it on 1‑3‑1978 and filed only 6 copy of the judgment with the memo of the appeal. They applied for a copy of the decree on 1‑3‑1978. The application was returned to them on 13‑3‑1978 on the ground that the decree sheet had not been prepared. It is said that the decree sheet was in fact prepared on 30‑3‑1978. Once again an application was made on 3‑4‑1978. The copy was ready on 13‑4‑1978 but was taken delivery of on 11‑5‑1978 and was ultimately filed on 18‑6‑1978. The District Judge found that the copy of the decree sheet had been filed long after the expiry of period of limitation and as the appeal was time‑barred, he dismissed it as such. The matter was taken up in second appeal to the High Court and that too was dismissed. The learned counsel for the petitioner has contended that under section 12(2) of the Limitation Act, the petitioners were entitled as a matter of right to deduct the time spent in obtaining the copy of the decree sheet and that should be the time from 1‑2‑1978 to 11‑5‑1978 and on that ground there was no delay and the appeal before the District Judge was in time. In any case, according to the learned counsel for the petitioners, there was sufficient ground for allowing the additional time taken as the Court had also intervened on 13‑5‑1978 directing the petitioners to make up the deficiency in court‑fee and to supply the certified copy of the decree sheet by 19‑6‑1978. We have examined the record alongwith the learned counsel for the petitioners and have gone through the cases cited by him, namely, West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi P L D 1973 S C 222 and Mst. Jamila Khatoon and another v: Mst. Tajunnisa and others P L D 1984 S C

208. We are in agreement with the observations made by the learned Judge in the High Court that making all the allowances for the petitioners he has taken 36 days after obtaining the copy for filing it in the Court of the District Judge. When the District Judge asked for the copy by the 19th of June, 1978 it was subject to all just exceptions and that would include objection by the other side with regard to the bar of limitation. Neither the entitlement of the petitioners is established nor the order of the first appellate Court allowing to file a copy of the decree sheet before a particular date is of avail to the petitioners in avoiding the delay or obtaining its condonation. Hence leave to appeal is refused. M.1. ??????????? Leave refused.