P L D 1974 Supreme Court 56 (PLP)

WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the order of the former High Court of West Pakistan, Lahore, in Civil Misc. No. 496/S of 1961, dated the 2nd February 1966. By this order, the applica tion under rules 2 and 3 of Order XLV of the Civil Procedure Code read with sections 109 and 110 for certificate of fitness for appeal to the Supreme Court in respect of judgment and decree of the Court in R. S. A. No. 330 of 1954, was dismissed as barred by limitation. The petition for certificate of fitness was filed on the 23rd May 1961, after 153 days of the date of judgment. The limitation prescribed by Article 179 of the Limitation Act is 90 days from the date of decree appealed from. The R. S. A. No. 330 of 1954 was accepted by the High Court on the 21st December 1960. The appellants applied for copy of the judgment on the 2nd January 1961. The copy was completed on the 24th March 1961. It was delivered on the Ist April 1961. If the time taken in obtaining copy of the judgment is excluded, the application was within time. An objection was raised before the High Court that the petition is barred by limitation. It was, however, urged before the High Court that section 12 of the Limitation Act applies to the case and the time taken in obtaining the copy of the judgment should be excluded. This plea did not prevail before the High Court and the petition was dismissed as barred by time. Special leave was granted to consider the question whether the time spent in obtaining the copy of the judgment of the High Court for purposes of limitation should have been excluded under section 12 of the Limitation Act. Rana Abdur Rahim Khan, learned counsel for the appellants, has contended that though under Chapter 8‑A, Volume V of the High Court Rules and Orders, there is no requirement that copy of the judgment and decree should be filed along with the application for certificate of fitness, but as Sh. Muhammad Iqbal Hussain, Advocate, who represented the appellants in the petition, was not their counsel in R. S. A. No. 330 of 1954, the copy of the judgment was required to enable him to draft the grounds of appeal to be taken before the Supreme Court in the event of the certificate being granted. In support of his contention learned counsel has relied on Punjab Co‑operative Bank Ltd., Lahore v. Official Liquidator, Punjab Cotton Press Co. Ltd and others (A I R 1941 Lab. 257). He has further relied on Jijibhoy N. Surty v. T. S. Chettyar (a Firm) (A I R, 1928 P C 103). In the first mentioned case, it was held as under :‑ "Appeals from the orders passed by the High Court in the exercise of its original jurisdiction are governed by Article 151, Limitation Act, which is subject to section 12 of the Limitation Act, and therefore the appellant is entitled, as of right, to deduct the time requisite for obtaining copies. Consequently section 12 of the Limitation Act, governs an appeal preferred under section 202, Companies Act, from an order of Single Judge of the High Court exercising original jurisdiction where the forum of appeal (as distinct from the right of appeal) is provided by the Letters Patent; and therefore the appellant is entitled to exclude the time requisite for obtaining a copy of the judgment appealed against even though under the Rules and Orders of the High Court no copy of the judg ment is required to be filed with the memorandum of appeal." It was further held as under :‑ "An appeal from a judgment passed by the High Court in the exercise of its original civil jurisdiction whether ordinary or extraordinary in which the forum as well as the right of appeal is given by the Letters Patent is governed by Art. 151, Limitation Act, which being subject to section 12 of the Limitation Act, the appellant is entitled to exclude the time requisite for obtaining a copy under section 12 of the Limitation Act." In the ease of Jijibhoy N. Surty, in which an appeal was filed from the judgment of the original side of the Rangoon High Court and the question was whether the appeal was within time and section 12 of the Limitation Act, applies, it was held as under :‑ "In reckoning the time for presenting an appeal, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it is not necessary to obtain such copies." It was further held that the word "requisite" is a strong word: it may be regarded as meaning something more than the word required. It means "properly required" and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default." He has also relied on a Karachi decision in Karachi Municipal Corporation v. Messrs Karim! & Co., (P L D 1967 Kar. 537) in which in a Letters Patent Appeal, section 12 of the Limitation Act, was applied. The learned counsel for the appellants has also referred to a decision of the Lahore High Court in Ghulam Haider and another v. Abdul Ghani and others (P L D 1949 Lah. 570), in which it was held that the time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for an application for leave to appeal to His Majesty in Council. He has further drawn our attention to a decision of the West Pakistan High Court, Baghdad‑ul‑Jadid in Ghulam Hussain Shah v. Ghulam Muhammad (PLD 1966 BJ 11), in which it was held as under :‑ "Now, in the instant case, the rules under which the present application is governed are contained in Chapter 8‑A of Volume V of the High Court Rules and Orders, and there is no requirement in these rules that the copies of the judgment and decree should be filed along with the application for leave to appeal. In fact, as already stated, no such copies have been filed with the present application. There is good reason for this rule as the application for leave to appeal is presented in the same Court which has delivered the judgment and which accordingly does not need any elaborate explanation to be embodied in the application for leave to appeal. Further, the original records are also available to the Court, as is the case before as. Finally, it is also to be noted that at least since 1935 the practice of the Lahore High Court, of which the High Court of West Pakistan is a successor, has been that no such copies are filed along with such applications and the time requisite for obtaining such copies is not excluded. Taking all these circumstances into account, we have no hesitation in following the dictum in Hari Ram's case, viz. that section 12 of the Limitation Act does not apply in the case of applications for leave to appeal to the Supreme Court." Thus it will be seen that there are two direct decisions of the Lahore High Court in support of the view of the High Court in which it has been held that section 12 of the Limitation Act does not apply to application for certificate of fitness to file an appeal before the Supreme Court. In the case of Ghulam Haidar and another v. Abdul Ghani and others, the Lahore High Court drew a distinction between subsections (2) and (3) of section 12 of the Limitation Act, and came to the following conclusion :‑ "The language of subsection (2), as it now stands, when contrasted with subsection (3) clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal. We are, .therefore, of opinion that the time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for an application for leave to appeal to his Majesty‑in Council." In this case, the judgment of the Lahore High Court in Hari Ram v. Prem Nath (A I R 1935 Lah. 341), was noticed in which it was held. that section 12 of the Limitation Act did not apply to an application for leave to appeal to His Majesty in Council, it being unnecessary for the applicant to file a copy of the decree or judgment with the application. The question, however, was left open and the learned Judges did not express any opinion on this point and made the following observation :‑ "In this case, the learned Judges have gone a step further in holding that even subsection (2) of section 12 does not apply to an application for leave to appeal to His Majesty‑in‑Council. But the question is not before us as it is conceded that the applicant never applied for a copy of the decree sought to be appealed from. It is, therefore, unnecessary for us to express any opinion on this aspect of the question." I have considered the view expressed in the case of Ghulam Haidar and another v. Abdul Ghani and others, and in my opinion,, subsection (3) of section 12 of the Limitation Act is not attracted to the case under consideration. It applies where a decree is appealed from or sought to be reviewed. It does not apply where an application for leave to appeal is made. Section 12 of the Limitation Act, reads as under :‑ "Section 12.‑(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3) Where a decree is appealed from or sought to be reviewed the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. (4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded." The relevant subsection relating to an application for leave to appeal is subsection (2) and under that subsection the time requisite for obtaining the copy of order is to be excluded. I have also considered the reasoning in Ghulam Hussain shah v. Ghulam Muhammad. In that case, a Division Bench of the High Court of West Pakistan at Baghdad‑ul‑Jadid, was influenced by the fact that under Chapte 8‑A of Volume V of the High Court Rules and Orders, there is no require ment that the copies of the judgment and decree should be filed along wit A application for leave to appeal and has based its decision on Hari Ram v. prem Nath and has not applied section 12 of the 'Limitation Act. Unfortunately, their attention was not drawn to the Full Bench case o the Lahore High Court in Punjab Co‑operative Bank Ltd., Lahore v. Official Liquidators, Punjab Cotton Press Co., Ltd and others. In my opinion, the principles laid down in this case and in the case of Ajibhoy N. Surty T. S. Chettyar, apply to the facts of the present case. The mere fact that under the Rules and Orders of the High Court, there is no requirement for filing the copies of the judgment and decree is no ground to ignore section 12 of the Limitation Act. As observed by their Lordships of the Privy Council, "section 12 of the Limitation Act does not say why the time is to be excluded, but simply enacts it as a positive direction." Their Lordships further observed in Jijibhoy's case at page 105, as under :‑ "If indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents an argument might be offered that no time could be requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment: no doubt, when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it." In the present case, the counsel who filed the petition for certificate of fitness was not appearing in the R. S. A. and, therefore, he was not aware of the contents of the judgment passed in the R. S. A. He has urged that as the 1J judgment was required by him for drafting the grounds of appeal, the time taken in obtaining copies of the judgment should be excluded under section 12 of the Limitation Act, Isis contention appears to be well‑founded and in my opinion, the time taken in obtaining the copies of the judgment should be excluded in the present case. After careful consideration of the points raised in the present appeal, I am of the view that the law enunciated in the cases of Jijibhoy N. Surty v. T. S. Chettyar and Punjab Co‑operative Bank Ltd.. Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd, is correct and the principles laid down in them should have been applied to the facts of the present cases. I would, therefore, accept the appeal and remit the case to the High Court to be heard upon merits. In the circumstances of the present case, the parties are left to bear their own costs. HAMOODUR RAHMAN, C. J.‑I agree. SALAHUDDIN AHMAD, J.‑ I agree. Appeal accepted.