1997SCMR530 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, dated 19‑12‑1994 whereby the learned Judge while accepting the writ petition filed by the respondent No. l declared the auction of property attached to charitable and religious trust by the Chairman, Evacuee Trust Property Board as without lawful authority and of no legal effect. A caveat has been filed in the above petition on behalf of the respondents and the learned counsel for the caveators has raised two preliminary objections to the maintainability of the above petition. It is firstly contended by the learned counsel that the petition filed before this Court is barred by time by 3 days. The second objection of the learned counsel for the caveators is that the petitioners while submitting petition before this Court failed to annex the paper book of the High Court as required under Order 13, Rule 3, sub‑rule (iii) of Supreme Court Rules, 1980. We would first of all deal with the preliminary objections raised by the learned counsel for the caveators. The first objection relates to the maintainability of the petition on the ground that it is barred by time. The admitted position in the case is that the writ petition was heard by the learned Judge in Chambers of Lahore High Court on 2‑11‑1994 and judgment was reserved. The judgment was announced on 3,19‑12‑1994 but before announcement of the judgment the petitioners had applied for certified copy of the judgment on 7‑11‑1994. The copy of the judgment was made ready by the office of the High Court on 5‑1‑1995 and it was delivered to the petitioners on 8‑1‑1995. The petition was presented before this Court on 9‑3‑1995. Under section 12 of the Limitation Act, the period spent in obtaining a certified copy of the judgment appealed against is to be excluded. In the present case, the period from 19‑12‑1994 (the date on which judgment was announced) to 8‑1‑1995 (the date of delivery of the certified copy of the judgment to the. petitioners) is to be excluded for the purpose of computation of the period of limitation prescribed for filing of petition before this Court. It is not disputed that the period of limitation prescribed under the law for filing a petition before this Court is 60 days. If 60 days are counted from 20‑12‑1994 (the date of announcement of judgment is to be excluded under section 12 of the Limitation Act) 60 days would expire on 17‑2‑1995. If the period spent by the petitioners in obtaining certified copy of the judgment appealed against is excluded then the petition presented before this Court on 9‑3‑1995 was within time. We, therefore, do not find any merit in the contention of the respondents that the petition filed before this Court was barred by limitation. The second preliminary objection raised by the respondents is that the petitioners while filing petition before this Court have not complied with the provisions of Order 13, Rule 3, sub‑rule (iii) of the Supreme Court Rules, 1980. No such objection was raised by the office when the petition was presented before this Court. In any case this objection appears to be more technical in nature and for this reason alone, the petitioners cannot be non‑suited if they otherwise have a case on merits. We, therefore, overrule this objection of respondents also. On merits, the learned counsel for the petitioners contended that the observation of the learned Judge in Chambers that without a declaration under section 8 of Act XVII of 1975 the trust property could not be put to auction, is the result of misappreciation of law. It is contended by the learned counsel for the petitioners that the question of determining the evacuee trust nature of the property would only arise if someone objected to the nature of the property. In the present case it was nobody's case that the property was not an evacuee trust property and as such the question of declaring it as an evacuee property under section 8 of Act XVIII of 1975 did not arise. It is, accordingly, contended that as the property was an evacuee trust property and it vested in the Evacuee Trust Board, its auction could not be objected to solely on the ground that the trust property could not be disposed of through auction. The contentions raised by the learned counsel for the petitioners require examination and we, accordingly, grant leave to appeal to consider the same. A.A./E‑58/S Leave granted.