P L D 1964 (W (PLP)

(i) That the Court-fee stamp is deficient by Rs. 120, (ii) that Vakalatnama has not been attested and accepted by the pleader concerned, and (iii) that the appeal is time-barred. On the same day, the Clerk of Court added that the applica tion under section 5 of the Limitation Act should also be put up for orders. On the 21st of November 1956, the then District Judge, Peshawar, Qazi Motadullah Khan, directed that the appeal be returned for necessary completion by the 26th of November 1956. The deficiencies pointed out by the office of the District Judge were complied with on the very next day, i.e., the 22nd of November 1956, and the appeal was accordingly registered.

3. The application for copies of the judgment and decree appealed against was made by one of the appellants, namely, Faqir Gul, on the 18th of October 1956, at the Copying Depart ment, Peshawar. On the 19th of October 1956, a note was recorded on this application by a clerk of the Copying Depart ment to the effect that the file in question had not been received from Charsadda. Thereafter, an order was passed on the same day by the Copying Agent, Mr. Zakaria Khan, who has appeared before the learned Additional District Judge as a witness for the parties, that the application be returned to the applicant. The application was then presented by the appellant Faqir Gul before the Subordinate Judge at Charsadda on the 29th of October 1956, and he gave permission for the granting of the copies in question. The same day the Assistant Commissioner, Charsadda, who is in charge of the Copying Branch at that place, ordered that the copy be supplied. However, nothing seems to have happened on the 30th and 31st of October 1956, and the applica tion was presented personally by the appellant Faqir Gul before the Copyist Azizul Haq on the 1st of November 1956. Copies were supplied to the appellant on the 5th of November 1956.

4. It will be seen that on the day the appeal was filed, namely, the 19th of November 1956, 41 days had expired since the date of the judgment and decree of the trial Court, as against 30 days allowed by law for filing the appeal. On that date, however, the appeal was not properly constituted, for the reason that there was a deficiency of Court-fee. The deficiency was made good only on the 22nd of November 1956, i.e., after the expiry of 44 days. Mr. Pir Bakhsh Khan, the learned counsel for the appellants, has contended that, in the first place, the time having been extended for making good the deficiency of Court-fee under section 149 of the Code of Civil Procedure, the appeal should be deemed to have been filed on the 19th of November 1956, i.e., on the day on which it was originally presented, in the District Court, and that the learned Additional District Judge had no power to revise or reverse the order of his predecessor, namely, Qazi Motadullah Khan, extending time in this behalf. He has further contended that even otherwise the learned Additional District Judge has erred in not allowing extension of time, for there was justification for doing so for the reason that the Court-fee stamp of the value of Rs. 120 was not available from the stamp-vendor and for this purpose money had been deposited in the treasury, and a note was given to this effect in the Memorandum of appeal itself, and finally, that the deficiency was made good the very- next day, although the Court had allowed time up to the 26th of November 1956.

5. The next contention raised by the learned counsel for the appellants is that even assuming that the appeal was properly filed only on the 22nd of November 1956, i.e., after the expiry of 44 days from the date of the judgment and decree of the trial Court, the appeal was still within time, as 19 days, namely, from the 18th of October 1956 to the 5th of November 1956, had been spent in obtaining copies of the judgment and decree of the trial Court, which meant that the appeal could have been filed within 49 days of the trial Court's decision. It is contended by the learned counsel that the learned Additional District Judge has grievously erred in rejecting the evidence of the Copying Agent, Zakaria Khan, which clearly supported the appellants.

6. We consider that it is not necessary in this case to deal with the first set of contentions raised by Mr. Pir Bakhsh Khan relating to the deficiency of Court-fee for the reason that if we accept the evidence of the Copying Agent, Zakaria Khan, and allow to the appellants the time spent in obtaining copies both at Peshawar and Charsadda, the appeal would be within time, even if it is deemed to have been presented on the 22nd of November 1956; and if we reject the evidence of Zakaria Khan, as has been done by the learned Additional District Judge, and agreeing with him, do not allow the appellants to deduct the period from the 20th of October to the 28th of October 1956, the appeal would be time-barred even if it is deemed to have been instituted on the 19th of November 1956. The fate of the case, therefore, depends on the determination of the number of days which are to be allowed to the appellants for obtaining copies of the judgment and decree of the trial Court.

7. As has already been indicated, in this case there are two distinct stages through which the appellant's application for obtaining copies has passed. The first stage was at Peshawar where the application was presented on the 18th of October 1956, and on the 19th of October 1956 it was ordered by the Copying Agent, Zakaria Khan, that the application be returned to the applicant for the reason that the judicial file in question had not been received from Charsadda. The question is when was the application actually returned to the applicant Faqir Gul. It was contended by Mr. Pir Bakhsh Khan that the application was returned only on the 29th of October 1956, and on that very day the applicant rushed to Charsadda and presented it to the Sub ordinate Judge at that place. This contention cannot, however, be accepted for the reason that in the affidavit filed by the appellant Faqir Gul along with his application under section 5 of the Limitation Act presented in the District Court, it was stated that the application was returned to him on the 26th of October 1956, and not on the 29th of October 1956, as now contended. Zakaria Khan, no doubt, stated in his examina tion-in-chief that the application was returned to the applicant on the 29th of October 1956, but in cross-examination he clearly admitted that the date given to the applicant for appearance at the Copying Department was 26th of October 1956, but the applicant did not turn up on that date, and that if he had turned up on that date the application would have been returned them. The inference is thus clear that time beyond the 26th of October 1956 cannot be allowed to the applicant in any case. However, the learned Additional District Judge has disbelieved Zakaria Khan even with regard to the 26th of October 1956. This official stated that, in the first instance, the applicant was told to appear on the 19th of October 1956, for receiving the copy, and when he appeared on the 19th, he was told to call again on the 20th of October 1956, and on the 20th of October he was again told to come on the 26th of October 1956. It was stated by Zakaria Khan that although on the 19th of October 1956 he had recorded an order that the application be returned to the applicant due to non-availability of the file, yet the application was not so returned by the Muharrir who was dealing with the matter, in the hope that the file may be received from Charsadda. In support of the fact that 26th of October 1956 was given to the applicant for appearance, the witness referred to an entry in the remark: column of the Copying Department Register C. D. I., against serial No. 6560, which shows that the present application was entered in this register on the 18th of October 1956. In the remarks column, the dates of appearance are recorded as the 19th of October 1956 and the 26th of October 1956. The witness asserted that it was the practice to enter dates of appearance under the remarks column. The learned Additional District Judge expressed the view that the date 26th of October 1956 entered in the remarks column was a forgery, for the reason that this date was not entered on the application itself as was required under the rules. At this stage, it may be stated that the practice, as narrated by the Copying Agent, is that when an application is made for a copy, the applicant is given a receipt, and at the back of the receipt is entered the date on which he should appear to receive the copy, and this date is also entered in the application itself. If the copy is not ready on the date indicated, then a fresh date is similarly given to the applicant, and also shown in the application. Now, in the present case, no date of appearance is at all given in the application itself. It is clear that this is an omission and a contravention of the rules, but the question is whether for this reason alone the evidence of Zakaria Khan is to be regarded as untrustworthy, and the appellants penalised.

8. Although no date of appearance is given in the applica tion itself, yet it is obvious that, some date must have been given to the applicant for this purpose. According to Zakaria Khan's oral evidence, the first date given was the 19th of October 1956. and this date is also entered in the remarks column of Register C. D. I. The oral evidence of Zakaria Khan as well as this entry in the Register C. D. I. have been accepted by the learned Additional District Judge, and are also sought to be relied upon by the learned counsel for the respondents, but the learned Additional District Judge was not prepared to go further and rely on the second part of Zakaria Khan's evidence as well as the second entry in the remarks column of Register C. D. I., that after the 19th of October 1956, the applicant was directed to appear on the 26th of October 1956. We do not see any reason for making this distinction between the two statements made by Zakaria Khan and the two entries appearing in the remarks column of Register C. D. I. maintained by the Copying Department at Peshawar. Since the application itself does not bear any dates of appearance at all, we have perforce to turn either to oral evidence or to other documentary evidence bearing on this point. Zakaria Khan was summoned as a witness by both the parties, and it is significant that in examination-in-chief, on behalf of the present appellants no question was at all asked about the entries in the remarks column of register C. D. I. If indeed the entries of dates in this column had been forged or manipulated at the instance of the appellants, they would certainly have brought out these entries in examination-in-chief. On the contrary, reference to the Register C. D. I. appears, for the first time, in the cross-examination of this witness. This fact seems r to suggest that the entries in the remarks column of Register C. D. I. were not only not procured by the appellants, but they were not even within their knowledge, and thus the question of their being forged for their benefit hardly arises. We have perused the entire evidence of Zakaria Khan, and we regret that we cannot subscribe to the conclusion formed by the learned Additional District Judge that this witness has given false evidence. After scrutinising the evidence of Zakaria Khan and hearing the two learned counsel at some length, we are firmly of the view that the mere omission of the mention of dares of appearance in the body of the application itself does not lead to the necessary inference that the application was not returned to the appellant Faqir Gul on the 26th of October 1956, nor does it mean that the mention of that date in the remarks column of Register C. D. I. is a forgery. In other words, we consider that there is no reason to disbelieve the affidavit filed by the appellant Faqir Gul along with his application under section 5 of the Limitation Act to the effect that the application was returned to him on the 26th of October 1956, nor is there any reason to doubt that the genuineness of the entry of this date in the remarks column of Register C. D. I. Disagreeing with the learned Additional District Judge, we would, therefore, hold that the application was returned to the appellant Faqir Gul on the 26th of October 1956.

9. The appellant, however, did not present this application before the Subordinate Judge at Charsadda until the 29th of October 1956 and again no action was taken on the 30th and the 31st of October 1956 and it was only on the Ist of November 1956 that the application was presented before the Copyist Aziz ul Haq. It appears, therefore, that no credit can be given to the appellant for the 27th and the 28th of October 1956, nor for the 30th and 31st of October 1956, as these four days were wasted by the appellant due to his own negligence. Period from the 1st of November to the 5th of November 1956, was, of course, taken in the preparation of the necessary copies and will have to be allowed. On the basis of this calculation, we consider that the appellants would be entitled to the exclusion of the period from the 18th to the 26th of October 1956, then 29th of October 1956, followed by the 1st of November to the 5th of November 1956, i.e., a total of 15 days. The appeal having been filed within 44 days must be held to be within time.

10. It was, however, contended by Mr. Abdul Latif Khan, the learned counsel for the respondents, that, in the first place, the appellants cannot be allowed deduction for both the days on which the application is made and on which the copy is received, and on the analogy of the rule laid down in section 12 of the Limitation Act, at least the day on which the application is made, namely, the 18th of October 1956 in this case, should be excluded from the calculation of the time requisite for obtaining copies. In the second place, he contended that as the process of obtaining copies was interrupted in this case due to the negligence of the appellants who did not pursue the matter on the 27th and 28th of October 1956 after getting the application returned from the Peshawar Copying Department, period from the 18th to the 26th of October 1956 should not be allowed to them, and the calculation should be started afresh from the 1st of November 1956 or at the most from the 29th of October 1956 on which date the application was presented at Charsadda.

11. We do not see any force in these contentions. The relevant provision of law as contained in subsection (2) of section 12 of the Limitation Act is that "the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. The plain meaning of the words used in this subsection is that the time which is required for obtaining a copy shall be excluded. The day on which the application for a copy is made and the day on which the copy is delivered, are clearly part of the time which is required for obtaining the copy in question. The rule embodied in subsection (1) of section 12 that in computing the period of limitation prescribed for any suit etc., the day from which such period is to be reckoned shall be excluded, cannot be applied in the case of calculating the time requisite for obtaining a copy, for the simple reason that the calculation of the time required for obtaining a copy is not governed by any artificial rule such as the one embodied in subsection (1) of section 12 of the Limitation Act. The phrase "time requisite for obtaining a copy" means exactly what it says and it has to be given its natural and plain weaning. That being the case, we are of the view that the day on which the application is made and the day on which the copy is B granted are both part of the time requisite for obtaining the copy and an appellant is entitled to have both those days excluded from the period of limitation. In the view that we take we are supported by a majority decision of the Nagpur High Court in Balkrishna Rajaram Modi v. Baijnath Girdharilal Tiwari and others (A I R 1939 Nag. 150).

12. For exactly the same reason we cannot subscribe to the view that if there is an interruption in the process of obtaining copy, then the time spent in the first stage before the interruption should not be allowed to be deducted. If the time spent in the first stage was requisite for obtaining the copy in question, then it is clear that it does not become time not so requisite by reason of any subsequent interruption which may take place in the process of obtaining or preparing the copy. It is immaterial whether the subsequent interruption was due to any official act or due to the negligence of the applicant. In the present case, it is conceded that the application was rightly made at Peshawar and accordingly, if the Copying Department at Peshawar took nine days in returning the application to the appellant for the reason that the judicial file had not been received, it cannot be said that this period was not time requisite for obtaining a copy. The appellant's negligence in not submitting the application at Charsadda for the next two days cannot alter the character of the period which had already been taken by the Copying Department at Peshawar.

13. It will be seen, therefore, that in our view the appellants were entitled to exclude 15 days from the period of limitation as time requisite for obtaining copy of the judgment and decree of the trial Court. The appeal, having been filed within 44 days of the date of the judgment and decree of the trial Court was, therefore, clearly within time. On this view of the matter, we would accept the present appeal, set aside the judgment and decree of the learned Additional District Judge, and remand the appeal to the District Judge, Peshawar, for fresh decision accord ing to law on the merits of the case. There will be no order as to costs. K. B. A. Appeal accepted.