1987 PLP 719 (PLC)

M.S.H. QURAISHI (CHAIRMAN).‑‑This appeal has been heard under subsection (4) of Section 22‑B of IRO, 1969 in the absence of third Member Mr. Ashraf Ali, J.S. Labour, who is pre‑occupied. As already noted in the order sheet of 6‑1‑1987, this appeal is delayed, having been filed on 14‑12‑1986 against the impugned order passed on 30‑10‑1985, the time allowed being 30 days. It appears that the hearing of the case before the Single Judge had concluded on 7‑10‑1985 but judgment had been reserved, and the parties had been allowed to submit written arguments by 17‑10‑1985. The impugned order was passed on 30‑10‑1985. There is however, nothing to show that it was announced with notice to the parties, or a copy of it was sent to the parties. It has been urged, in the condonation application, that the appellant came to know of the order on 19‑11‑1986. But we find from an order of the Single Bench in contempt case No.7(131)/86, arising out of the impugned order, that the appellant's Counsel appeared there on 23‑10‑1986 an made a statement that the appellant had received notice of the contempt case a day before ire on 22‑10‑1986. It is however, urged that wit that notice he had not been furnished a copy of the impugned order Since he had appeared in the contempt case on 23‑10‑1986, the file of which contained a copy of the impugned order, he must be saddled with the knowledge of the impugned order on that date. Thereafter, he applied for copy of the impugned order on 10‑11‑1986 which was supplied to him the same day. He also applied for inspection of the file on 18‑11‑1986 and inspected the file that day. He next filed a Writ Petition in the High Court on 25‑11‑1986 which lie withdrew on 10‑12‑1986 and then moved this appeal on 14‑12‑1985. The time taken from the date of knowledge that is 23‑10‑1986 to the filing of this appeal on 14‑12‑1986 can be split into three parts: That is:‑ (1) 32 days taken to file the Writ petition on 25‑11‑1986. (2) 15 days spent in pursuing that petition, and (3) 4 days taken after dismissal of the Writ petition on 10‑12‑1986, to file this appeal on 14‑12‑1986. The appellant's contention is that time should commence to run from the date of knowledge and that if the time spent in obtaining copies and inspection of the file be excluded, the writ petition was filed in time. In regard to the time spent in prosecuting the Writ petition, it is submitted orally that the appellant's Counsel moved the writ petition in good faith because the question of appealability of an interim decision was in controversy before the NIRC, but that later, realising that no decision having yet been pronounced by he commission against the maintainability if such appeal he could prefer an appeal he withdrew the writ petition and that therefore this period ought to be excluded on the principle of Section 14 of the Limitation Act as constituting sufficient cause for the purpose of Section 5, which section is applicable to the proceedings before the Commission. In regard to the four day s time taken after dismissal of The Writ Petition it is submitted that the time was needed for the work preparatory to presenting the appeal. Section 22‑D of the IRO, 1969 requires that an appeal can be filed "within thirty days of . . . . . decision". Under section 65‑B of the IRO, "the provision of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply in computing the period within which an application is made or any other thing is to be done, under the Ordinance". Since the impugned order had not been passed in open Court with notice to the parties nor had a copy there: been supplied to them, the appellant is entitled to the condonation of the period till he acquired knowledge of the Order. But the question arises whether the commencing date should remain the date of passing of the impugned order, or should be substituted by the date of knowledge. For, if the commencing date remains the date of the order, then the appellant is not entitled to the statutory period of 30 days, but is liable to account for each and every day after the date of knowledge. On the other hand, if, the date of knowledge itself is the commencing date, then he will be entitled to the benefit of the full statutory period. No proper assistance was available on this specific point, but the controversy can be resolved by invoking the principle that the act of Court, shall not prejudice any party, and thus giving the benefit of treating the date of knowledge as the commencing date. This is supported by case law. In Ma Me Thin v. Maung San Lun, (27.IC.784) where judgment had been reserved and later delivered on 9th April, without notice to and in the absence of the parties or their Pleaders, the party appealing had come to know of it on 16th May, she obtained a copy on 20th May and filed appeal on 21st May, it was ruled that "it is not incumbent upon her to make enquiries about the judgment at all. She was entitled to rely upon the Court obeying the express provisions of law and giving notice to her Pleader of the date fixed for its delivery. That the appeal became barred was entirely due to the negligence of the Judge, and she cannot be held responsible for it". In Lalli and another v. Sain Ditta and others (27‑PR‑1919) = 51 IC‑239), where judgment in the lower Appellate Court had been reserved and later issued under the date 2‑7‑1917, but had not been pronounced in open Court, nor had any intimation been sent to the parties of any date for its pronouncement with the result that the appellant or his Pleader could not discover what the decision was till 13‑10‑1917 and he filed the appeal on 26‑11‑1917, it was held by a Division Bench that "In these circumstances, we are of opinion, that time should only begin to run from the 13th of October, 1917 and that the appeal is, therefore, within limitation. In any event, we are of opinion that the facts disclosed constitute sufficient cause within the purview of Section 5 of the Limitation Act which would justify an extension of the period prescribed". The position was further clarified in yet another case of the Rangoon High Court reported as Ma Hamwe Yai and another v. Daw Win Tha A I R 1941 Rangoon 194, where a Division Bench, relying on Privy Council rulings, held that the dictum that an act of the Court cannot injure any of the suitors should be read with S.5 and the expression "sufficient cause" used therein should not be construed in too narrow a sense and that "Consequently, where in contravention of the provisions of O.41, R.30, the first appellate Court delivers its judgment at some future date without notice to the parties, the appellant cannot be prejudiced by the irregularity and therefore under S.5 must be granted the full period allowed by statute in which to file his second appeal from the date on which he comes to know of the judgment of the first appellate Court. It would be to put a new standard into the law of limitation to say that in such cases the appellant is only to be given such time as the superior Court might in the exercise of its judgment think reasonable. The standard of what is reasonable depends upon the period of limitation which the Legislature has sought to impose in the first case". We have not been able to lay our hands on any recent decision of Pakistan Courts on this specific point, but we see no reason to disagree with the rulings already cited above and accordingly hold that the appellant before us is entitled to the benefit of the full statutory period. Allowing for the time taken to obtain copy of the order and to inspect the file, we find that the Writ petition had beer filed in time. He will also be entitled, in the circumstances of that case to the period spent in prosecuting the Writ petition in addition to the time taken to inspect the file, to obtain copy and to take the steps preparatory to the filing of this appeal. The delay is, therefore, condoned. The appeal is now admitted to a full hearing. Malik Muhammad Suleman, Advocate present takes notice on behalf of the Respondent. To come up on 4‑3‑1987. Misc. App. for stay. No.24(434)/86: It is submitted by the appellant's Counsel that an application had been made for interim relief in connection with three complaint cases bearing No.4(198)/85, 4(199)/85 and 4(200)/85, of which the first two stood dismissed. This meant that the interim order relates to the only remaining case No.4(200)/85 which being a complaint case, the interim relief, according to the Counsel, was not warranted until final disposal of that case. He attacks the stay order also or merits. On consideration of the matter, we are inclined to stay the operation of the order made in paragraphs 11 and 12 of the impugned order and order accordingly. A.A. 116/N.I.C. Order accordingly.