P L D 1978 Lahore 1456 (PLP)

The judgment of the learned District Judge was passed on the 3rd of May 1978. The appellant filed a second appeal on the 21st of May 1978, without a copy of the judgment of the learned trial Court, which was required to be filed alongwith the appeal under the provisions of Order XLII, rule 1, C. P. C. However, an application for dispensing with this copy, C. M. 3044/C/78, was filed alongwith the memorandum of the appeal. The Court did not dispense with the said copy but while admitting the appeal on the 24th of May 1978, observed that "the certified copy of the trial Court's judgment shall be filed by the appellant at his own risk qua the question of limitation".

2. C. M. 5304/C/78 was filed by the respondent on the 23rd of September 1978, inter alia for dismissal of the appeal as having abated in view of the failure of the appellants to file the certified copy within the period of limitation notwithstanding the above observation. The matter came up for hearing on the 1st of October 1978, on which date a notice was issued to the learned counsel for the appellants for the 17th of October 1978. The learned counsel for the appellants noted in office this date on the 7th of October 1978. On the next date i.e. the 8th of October 1978, he filed the certified copy of the judgment of the learned trial Court, which was obtained by the appellants from the High Court on an application submitted on the 10th of July 1978. This copy was prepared on the 11th of July 1978, but it was obtained on the 8th of October, on which date it was filed in this Court.

3. When the matter came up for hearing this morning, the learned counsel for the appellants made a statement at the Bar that the required copy bad already been filed on the 8th of October. Since the copy was not traceable in the Court's file, the matter was adjourned till after the recess. A petition (C. M. 5722/C/78) under section 5 of the Limitation Act, was filed today in the office for condonation of delay in the filing of the certified copy of the judgment of the trial Court. It is clear that this petition was not filed alongwith the certified copy of the said judgment on the 8th of October.

4. The appeal which was not properly filed in the absence of a certified copy of the trial Court judgment had become barred by time on the 1st of August 1978. Since the appellants could claim the advantage of this date falling during vacation when the High Court was closed for civil judicial work, a proper appeal could have been filed by the 12th of September 1978, on the date when the High Court re-opened. The copy of the judgment having been filed on the 8th of October, the appeal has barred by 27 days.

5. In the petition under section 5 of the Limitation Act, it is stated that an earlier application submitted for copy of the said judgment was returned by the Copying Agency. Jhang on the 14th of June 1978. The date of the application is not however, given and it is quite possible that it might have been filed after the passing of the order of this Court dated the 24th of May 1978. It is further stated in the application that though the application for copy was returned on the 14th of June 1978, but it had thereafter been with the clerk of the counsel of the appellants through whom it was filed and the appellants had obtained it from him on the 9th of July 1978. Abdul Shakoor, appellant No. 1 came to Lahore on the 10th of July 1978 and filed an application in the Copying Agency of the Lahore High Court on the same day and gave the receipt of the said application to Ata Muhammad, Clerk of Malik Allah Yar Khan, his counsel. The said Clerk left the service of the counsel but he did not inform the appellants about the preparation of the said copy. Appellant No. 1 came to Lahore on the 10th of June 1978, and obtained the same without the receipt from the Copying Agency, since the receipt was with the Clerk.

6. The learned counsel for the appellants states that this date i.e. 10-6-1978 is incorrectly recorded since it should be 8-10-1971. I agree with him as this date does not make any sense in view of the fact that application for copy had been submitted in the High Court on the 10th of July 1978. I will, therefore, read this date in the petition as 8-10-1978. In the affidavit .this date is correctly recorded as 8-10-1978.

7. At my query the learned counsel submitted that he did not have any notice about the submission of the application for the certified copy of the trial Court's judgment nor did he know whether such an application was made by the Clerk. He also could not say whether the receipt was with the Clerk or with the appellants. He further stated that the Clerk had left his service either at the end of July or in the middle of August 1978.

8. It is clear from the facts of the case that the appellant who had been negligent throughout and had not submitted an application for copy initially alongwith the application given by him for copies of the judgment and decree of the 1st Appellate Court, did not take sufficient interest in obtaining the said copy notwithstanding the fact that it had been made clear in the order dated 24th of May 1978 that he should file the copy of the trial Court's judgment at his own risk in respect of period of limitation. It appears that he had submitted the first application for copy at Jhang quite late when the record of the case had been sent to the High Court in this appeal. This application was returned on the 14th of June 1978, but he did not care to verify from the Clerk till the 9th of July 1978 about the fate of this application. He came to the High Court on the 10th of July 1978. The copy was prepared the very next date and yet no body took care to collect it from the Copying Agency till 8th of October 1978, after the service of the notice on the learned counsel for the appellant in C. M. 5304/C/78. I am not inclined to believe that the blame is entirely upon the Clerk of the learned counsel. The appellants themselves have not been careful and vigilant to obtain the copy within the period of limitation. As stated above the period of limitation had already expired on the 1st of August 1978 and the appellants could at most take advantage of this period up to the 11th of September 1978. This is a case of absolute negligence on the part of the appellants. There is no ground for l of delay.

9. The learned counsel placed reliance on Kala ; (represented by Legal Heirs) v. Allah Dad (represented by Legal Heirs) (P L D 1977 Lah. 376), in which it was held that an appellant cannot take advantage of section 12 of the Limitation Act for computing the period spent in obtaining the copy of the trial Court judgment but since this is necessarily to be filed in view of Order XLII, rule I, C. P. C. and an appeal in the absence of such a copy would not be a proper appeal, the Court should condone the delay in obtaining the copy of such a judgment.

10. This authority does not help the appellants, as they had already applied for copy of the judgment of the trial Court within the period of limitation and the same was prepared within that period. They could take advantage of this authority only up to the 1st of August 1978 or at B the most up to the 11th of September 1978. From that date onwards they have to explain each day's delay which has not been explained in the present case. C. M. 5304/C/78 is therefore, allowed and the appeal of th01 appellants is dismissed as barred by time. There will be no order as to costs. S. A. H.?????????????????????????????????????????????????????????? Order accordingly.