1998 PLP 263 (CLC)

Ch. Ali Muhammad for Petitioner. Nemo for Respondents. Date of hearing: 27th August, 1997. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in, question judgment and decree of the Additional District Judge, dated 8‑2‑1996 dismissing the petitioner's appeal against the decree for maintenance passed by the Family Court, Sheikhupura on 2‑I‑1996 as being barred by time.

2. Petitioner's learned counsel has contended that view taken by the Additional District Judge that the petitioner's appeal was not within time is based upon misreading of the record as also the law. No one has appeared on behalf of the respondents. They are proceeded against ex parte.

3. There is considerable merit in the contention of the learned counsel for the petitioner that the appeal of the petitioner before the District Court was within the prescribed period of limitation after excluding the time spent on obtaining the certified copies and as such the same could not have been dismissed as being barred by time.

4. Admittedly, the decree under challenge before the Additional District Judge was passed on 2‑1‑1996. The application for grant of certified copies was made by the petitioner on 30‑1‑1996 which were ready for delivery on 4‑2‑1996 though the same received by the petitioner on 6‑2‑1996. Under section 12(2) of the Limitation Act, 1908 the time requisite for obtaining the copies has to be excluded while computing the period of limitation. In the present case even if it be assumed that the time requisite would be the time between the date on which the copy was applied for and when it was ready for delivery the petitioner as entitled to exclusion of six days which were spent upon obtaining the copies. The limitation for filing an appeal against the judgment of the Family Court being 30 days the petitioner could have filed the appeal within a period of 36 days from the date of decree viz., 2nd of January 1996. The appeal was instituted on 7‑1‑1996 which was the 36th day and could not be said to be barred by time. From the tenor of the judgment of the Additional District Judge it appears that he was under a misconception that the day on which the copy was supplied was not to be excluded while computing limitation. The time requisite under section 12(2) of Limitation Act clearly means the time spent in obtaining the copies and as such would include both the day on which the application for copy was made or the day on which the copy was supplied. In Balkrishna Rajaram Modi v. Baijnath Girdharilal Tiwari and others (AIR 1939 Nagpur 150) it was ruled that the time requisite would include the day on which the copies are applied for. In Shafqat Hussain Shah v. Sakina Begum and others (1987 CLC 664) this Court held that the day on which the application for copy is made and the day on which such copy is obtained are both part of the "time requisite for obtaining the copy" and would be excluded while computing limitation. In this view of the matter the Additional District Judge clearly acted in excess of his jurisdiction in dismissing the appeal of the petitioner being barred by time. As a result of what has been stated above, this petition is allowed, the impugned judgment and decree of the Additional District Judge is declared to be without lawful authority ‑and of no legal effect with the result that the appeal filed by the petitioner against the decree of the trial Court shall be deemed to be pending before the Additional District Judge and shall be decided afresh in accordance with law. No order as to costs. A.A./B‑26/L Case remanded.