1998 PLP 2023 (CLC)

(6) What should the decree be? To establish the case respondents (plaintiffs) examined P.W.1 Ghulam Raza Station Incharge who produced original agreement, dated 28‑8‑1981, application for grant of cheque facility, notice, dated 5‑1‑1989, 4‑3‑1989, 4‑4‑1989, agreement dated 10‑2‑1990 and 30 original invoices and then their side was closed on 14‑11‑1992. On the other hand the appellants in spite of many chances failed to lead evidence. As such their side was closed on 2‑3‑1993. After hearing both the parties the learned trial Court passed preliminary decree on 31‑5‑1993. But before report of the Commissioner, an application under Order VII, Rule 11, C.P.C. was moved on 23‑11‑1994 by the respondents on the grounds as mentioned below:‑‑ (1) That the suit is not maintainable. (2) That the suit is barred under Order III, Rules 1 and 2, C.P.C. and Sindh Civil Court Rules. (3) That the suit is filed by a person who was not authorized and his power of attorney is not according to the Power of Attorney Act. The abovesaid application was dismissed on 10‑9‑1995 and final decree was passed on 25‑9‑1995. Mr. M.A. Rasheed learned counsel for respondents at the very outset raised a legal plea that this appeal is not maintainable as the appeal required under section 97, C.P.C. against preliminary decree dated 29‑5‑1993 of learned Senior Civil Judge, Sukkur has not been preferred. He next contended that this appeal too has not been filed within time and is hit by section 12 of the Limitation Act. According to him application for grant of true copies of the documents was made by the counsel of appellant on 24‑9‑1995 and its estimated cost was determined on the same day and advance fees were deposited but the stamps were not supplied on that date which were supplied on 21‑12‑1995 and it was on that day the copies were not only made ready but were delivered to the appellant. Learned counsel argued that in view of the above position the case of appellants is hit by sub‑rule (2) of Rule 324 of Sindh Civil Courts Rules whereby if the estimated amount of fees and in case of certified copies requisite stamps is not deposited within seven days from the date of communication under sub‑rule (1) of Rule 323 the application shall be rejected. He lastly argued that present appeal was preferred on 17‑3‑1996 whereas the estimated cost was determined on 24‑9‑1995. As such the appeal is preferred beyond stipulated period of three months provided for filing of appeal under section 96, C.P.C. In support learned counsel relied upon the case‑law reported in PLD 1984 SC

208. On the other hand, Mr. Manzar Alam, controverted the arguments and submitted that the estimated cost was determined provisionally and some amount in advance was obtained from appellant and no notice as required under Rule 325 was issued or communicated to the appellants by the Copying Branch about the documents being ready and supply of the stamps. He lastly argued that this Court is competent to dispose of this matter as a writ petition in case the Court comes to the conclusion that the present appeal is barred by the law of Limitation and that technicalities, if any, should not come in the way of justice. He placed reliance on the case‑law reported in PLD 1972 Lah. 187 and 1996 SCMR

763. Relevant points for determination are set down as under:‑‑‑ (1) What will be the effect if no appeal is preferred against preliminary decree as required under section 97, C.P.C.? (2) Whether the case of appellants is hit by section 12 of the Limitation Act in view of Rule 324 of Sindh Civil Court Rules? Admittedly the appeal against preliminary decree dated 30‑5‑1993 has not been preferred. On this point learned counsel contended that after passing of the preliminary decree the learned trial Court appointed Commissioner to settle the accounts and calculate the interest who did so on 7‑8‑1995 and on the basis of which final decree was prepared on 25‑9‑1995 against which the instant appeal has been filed. Learned counsel for the respondent, on the other hand, stated that the decretal amount in preliminary decree as well as in final decree was determined to be one and same and the provisions of section 97, C.P.C. clearly contemplate that in case appeal is not filed against the preliminary decree, party aggrieved shall be precluded from disputing its correctness in appeal preferred from the final decree. For proper appraisal a reference is made to section 97, C.P.C. which is as follows: "

97. Appeal from final decree where no appeal from preliminary decree.‑‑ Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. " From its bare reading it transpires that in case if appeal is not preferred against preliminary decree the correctness of the same cannot be questioned in any appeal to be preferred against final decree. Same view has been taken by this Court in the case of Rashid Ahmed v. Nabir Ahmed reported in PLD 1967 Kar.

136. I do not agree with the contention of learned counsel for respondents and point No. 1 for determination settled above is answered in the manner that the appellants are competent enough to question the validity of the final decree even if they had not preferred appeal against the preliminary decree which, in fact, was not complete as after the announcement of judgment the learned Trial Court did not find the amount accurate and, therefore, appointed Commissioner to settle the accounts which was done in the final decree Adverting to the next point regarding the limitation it may be observed that the appellants applied for the grant of true copy of judgment and decree and other documents en 24‑9‑1995 and it was on the same day the amount was ascertained by the Copying Branch and estimated cost was deposited on the same day. The stamps as well as deficit amount was paid on 21‑12‑1995 and the copies were made ready and with certification on the same day delivered to the appellants. They however, filed appeal on 17‑3‑1996 that is after 5 months and 21 days whereas the period for filing appeal is prescribed to be 3 months only. Rule 323 of Sindh Chief Court Rules provides that as soon as an order for copy or translation has been made the Record‑keeper shall number and register application in the register of application for copies and translation and shall also at once, if possible, or during the same day but ordinarily not later than following working day ascertain the amount of copying, comparing and translation fees and enter them on the application and communicate them to the applicant. Sub‑rule (1) of Rule 324 states that no copying or translation shall be commenced until the estimated amount of copying, comparing fee, translation have been deposited with the Record‑keeper and its sub‑rule (2) says that the estimated amount of fees and in case of certified copy, also the requisite stamp if not deposited within seven days from the date of communication under sub‑rule (1) to the applicant, the application shall be rejected and note be made in the register of applications for copies and translation. Here in the present case the estimated amount was deposited by the appellants on the same day when it was calculated by the Record‑keeper but the requisite stamp was not supplied within 7 days which being a mandatory provision the application was liable to be rejected. Rule 329 makes the position further clear which is reproduced as under:

329. Certified copies shall be endorsed with the following particulars:‑‑ (1) The date of application for the copy; (1) the date of estimate of fees; (3) the date of deposit of estimated fees and the date of supply of stamp; (4) the date of certification by the Chief Ministerial Officer; and (5) the date of delivery of the copy. They shall be certified at the foot to be a "true copy" shall bear the seal of the Court on each page, and shall be dated and subscribed in full with his name and official title by the Chief Ministerial Officer of the Court. The Certifying Officer shall initial every alteration and interlineation in the copy. This rule shows that two separate dates are mentioned about the deposit of estimated fee and supply of stamps. The contention that the Record‑keeper was bound to past the copies for delivery on the notice board in the office has no force in view of Rule 331 of the above Rules which provides that list of copies and translation ready for delivery shall be pasted on the notice board. Since the copies were not ready for delivery for want of stamp, it could not be included in the list under this Rule. The words "time requisite" mentioned in section 12 of Limitation Act for obtaining copies shall be excluded in certain limited conditions such as where the delay caused was because of the circumstances over which applicant had no control and which could not by due diligence be avoided. In such a situation the delay can form part of time requisite for obtaining the copies. Here in the present case nothing of the sort has either been mentioned or agitated by the appellants in the appeal. Honourable Supreme Court in the case of Mst. Jamila Khatoon and another v. Mst. Tajunissa and others (PLD 1984 SC 208) has elaborately decided these points and has held that once the estimated amount of fee is communicated to the applicant under Rule 323(1) he is required to deposit the amount as well as the requisite stamp within 7 days from the date of such communication, otherwise his application is liable to be rejected: In case of State of W.B. v Midnapore Commercial Co. Ltd. AIR 1978 Cal. 358 Full Bench has held:‑‑ "By framing rules the High Court cannot extend the period of limitation prescribed by the Limitation Act. A date is fixed by the department under the Rules for filing the stamps and folios. The Rules permit that within specified period, the stamp and folios have to be delivered. If stamps and folios are not delivered within thus specified, the thin application for copies are liable to be rejected. But the period specified in the Rules has, nothing to do with extension of the period of limitation prescribed by the Limitation Act. If there is delay in depositing and delivering the stamps and folios after notification, that delay also cannot be taken advantage of by a prospective appellant or applicant, as the time taken cannot be said to be the time requisite .for obtaining copy of order or decree under section 12(2) of the Act. The fact that a proposed appellant or applicant has made a delayed deposit and the Court has accepted the delayed deposit instead of rejecting the application does not make any difference." Keeping in view the above legal position the case of appellants is hit by section 12 of Limitation Act and there is absolutely no ground shown by the appellants to exclude the time consumed by them in obtaining the copies of the documents. Therefore the appeal of the appellants apparently seems not to have been filed within time and is barred by law of Limitation. The law referred by learned counsel for appellants is entirely on different facts and circumstances and has no relevancy to their case. The trial Court has properly dealt with the issues in the judgment and it has rightly observed under Issue No.3 that appellants/defendants failed to bring any evidence oral as well as documentary in spite of many chances granted to them and on the contrary the claim of respondents/plaintiffs was fully supported and corroborated by oral as well as documentary evidence inasmuch as so many documents were produced which were not rebutted. For the foregoing reasons there seems to be no merit in the appeal. Therefore, the same is dismissed in limine with no order as to costs. R.M.S./M‑297/K Appeal dismissed