1991 PLP 853 (CLC)

‑‑‑‑ S. 115 & O.XLI, R.22 ‑‑‑ Revisional jurisdiction, exercise of ‑‑‑ Appellate Court below failed to exercise jurisdiction in not considering and deciding appeal/cross objection on merits ‑‑‑ High Court in exercise or revisional jurisdiction, set aside judgment and decree passed by Court below and remanded case to decide afresh on merits in accordance with law. Sahibzada Saced‑ul‑Hassan for Appellant. Hakam Qureshiand Abdul Aziz Qureshi for Respondents. Date of h6ring: Ist March, 1999. This appeal is directed against judgment and decree dated' 10‑7‑1985 passed by learned Additional District Judge, Lahore through which the appeal filed by the appellants against judgment and decree dated 19‑12‑1983 passed by learned trial Court has been dismissed.

2. The facts relevant for disposal of this appeal in brief are that respondents I to 4 filed a suit for administration of property against the appellants and respondents 5 to

7. The suit was decreed by the learned trial Court through judgment dated 19‑12‑1983. The present appellants on the one hand and respondents 5 to 7 on the other hand riled two separate appeals against the said judgment and decree of the trial Court in the Court of learned Additional District* Judge, Lahore. It was admitted by learned counsel for the parties that the appeal riled by respondents 5 to 7 was earlier in time. The appellants however in the title f the appeal described the same as appeal/cross‑objections. , Both the appeals came up for hearing on 25‑5‑1985 on which date both the appeals were independently heard and they were adjourned for the remaining arguments. However, on 13‑6‑1985, the date Fixed for remaining arguments in both the appeals, the arguments were heard in the appeal filed by the appellants whereas the respondents 5 to 7 did not press their appeal therefore their appeal was dismissed on that account. Order in the appeal of the appellants was reserved and ultimately it was dismissed through judgment and decree dated 10‑7‑1985 on the sole ground that it was barred by time by one day which has been impugned in this appeal.

3. Learned counsel for respondents raised a preliminary objection that keeping in view the valuation of the suit for purposes of jurisdiction fixed in the plaint this second appeal is not competent and the only remedy available to the appellants was to rile a revision petition. Nothing turns on this as it has been settled by the Supreme Court that there is no bar against treating the appeal as a revision and vice versa. Since the learned counsel for the appellants did not controvert the plea that the valuation of the suit for purposes of jurisdiction was such that no second appeal was available therefore, I hereby treat this appeal as revision and proceed to dispose it of as such. The office is directed to register this appeal as revision petition.

4. Learned counsel for the petitioners mainly contended that the appeal before the learned lower Appellate Court was not barred by time and even if it was barred by time, the same could be treated and disposed of as cross objections, since the appeal of respondents 5 to 7 was also pending when the appeal on behalf of the petitioners was riled.

5. The decision of the question of limitation centres around decision as to on which date the petitioners made application for supply of certified copy of the decree sheet of the trial Court. According to the endorsement made on the certified copy of the decree‑sheet made by the copying agency on the file, the same was applied for on 3‑1‑1984. If the period of limitation is computed on the assumption that application for certified copy of this decree‑sheet was made on 3‑1‑1984 learned counsel for the petitioners franlol conceded that the appeal would be barred by time by one day. He however, insisted that this endorsement was Against the record with the copying agency whereas as a matter of fact, application for supply of the said copy was made at late hours on 2‑1‑1984 and it was entered by the copying agency in the relevant register on 2‑1‑1984. In order to ascertain the correct factual position the original record from the copying agency was summoned at the stage of preliminary hearing and on the request of the learned counsel for the respondents it was again summoned which was produced on 21‑12‑1988. This was necessitated because learned counsel for respondents submitted that the summoning of the said record at limine stage was in their absence therefore if any inferences were to be drawn I from the said record to resolve the controversy the same should be examined in their presence.

6. On examining the said record it transpired that the application of the petitioners for supply of certified copy of decree sheet was entered at serial No.22 on 2‑1‑1.984. This serial number was the last serial number on the relevant page under the date 2‑1‑1984. Serial No.23 was the first serial number on the next page under the date 3‑1‑1984. Mr. Murrawat Hussain who appeared before this Court with the record, stated that he made that. entry and stated that as a matter of fact the application was made on 3‑1‑1984 and inadvertently before entering the application against serial number 22 he did not put above it the date as 3‑1‑1984. 1 also noticed that. The court‑fee stamp affixed on the application is dated 3 1‑1984 and since the requisite copy was to be supplied from the record of pending suit therefore, before supply of copy sanction of the Presiding Officer of the Court was required and it was manifest from the said application that the learned Presiding Officer of the Court signed the order for alitming the supply of copy oil 3‑1‑1984. In view of these facts it was stressed by learned counsel for the respondents that the application was made on 3‑1‑1984 and the appeal was barred by time by one day. I have examined the relevant provisions of copying agency manual which provide that an application must contain a court‑fee stamp of requisite value and dealing officer in the copying agency was to undertake scrutiny of such application to ascertain whether there was any objection. It is clear from the relevant register as noticed ‑above that application of the petitioners was entered against serial number 22 on 2‑1‑1984. Since the application was not bearing court‑fee stamp of requisite amount and order of the Presiding Officer of the Court allowing the issuance of the copy had also not been obtained therefore the copying agency according to the said manual should have returned the application. According to para. 3.8 (iv) of the said manual, it is primarily the duty of the copying agency to obtain sanction of the higher authority if it was a prerequisite for the supply of copy. It may be a practice that instead of obtaining the sanction of the higher authority itself. If, the copying agency had been requiring the appellant to get an order from such authority for supply of copy which will not change the legal position as stated above. Considering that the application was made on 271‑1984 the same cannot be held to have been made on 3‑1‑1984 merely because court‑fee stamp was affixed on 3‑1‑1984 or that sanction of the Presiding, Officer of the Court was also obtained on 3‑1‑1984. It appears that the copying agency entertained the application on 2‑1‑1984 without court‑fee stamp and the order of the Presiding Officer and in order to cover this Lault, an attempt was made by Murrawat Hussain to make out a case that he could not record the date of 3‑1‑1984 above entry number

22. An application for supply of copy which may be defective on any account if entertained and entered in the register on a particular date that would be the date on which the said application shall be deemed to have been made for computing the period of limitation and that date shall be included in the time spent for obtaining copy within the meaning of section 12 of the Limitation Act. After having concluded that the application for supply of copy was made on 2‑1‑1984 the appeal of the petitioners before the learned lower Appellate Court was within time. The findings of the learned lower Appellate Court are therefore, not sustainable.

7. Now I revert to the arguments of the learned counsel for the petitioners that the cross appeal of the petitioners could be considered and disposed of as cross‑objections even if it was barred by time. The memo of appeal clearly shows that the petitioners described the appeal as appeal/cross‑objections. The words cross‑objections have been written by hand with the pen whereas the remaining memo of appeal has been typed out. Learned counsel for the respondent urged that these words with hand have been written later on before filing the present petition before this Court to argue that the said memo could be treated as cross objections. I have compared the note given on the left side of the first page of memo of appeal by the learned counsel for the petitioners to the effect that against the same decree an appeal was pending before Mr. Naveed‑ul‑Zafar, Additional District Judge, Lahore. This note is with the pen and in the hands of the learned counsel for the petitioners. The ink and the pen with which this note and the words 'cross‑objections' have been written are exactly the same. In view of this opinion which I have formed after examining the memo of appeal the argument that the words cross‑objections were added later on cannot be accepted. Even if these words have not been written, even then under the relevant laws as interpreted in judgment reported as Mst. Nausha Bi v. Rangbaz and others (P L D 1954 Lahore 265) the cross‑appeal which even was barred by time, could be treated and disposed of as cross‑objections. It was not disputed by the learned counsel for the respondents that if the cross‑appeal of petitioners had been treated as cross‑objections, the cross‑objections were within limitation. It was filed much before the service of notice on the petitioners for a date of hearing of the appeal Filed by respondents 5 to

7. Under the law the cross objections could be riled within 30 days from the date of service of notice on the respondents.

8. Having realized this difficulty, learned counsel for respondents then argued that the cross‑appeal of the petitioners could be treated cross‑objections if the appeal of respondents 5 to 7 was pending and in, this case according to him since the appeal riled by respondents 5 to 7 was withdrawn on 13‑6‑1985 when the final arguments were heard in both the appeals, therefore appeal of the petitioners could not have been treated and disposed of as cross‑objections on this date when the impugned order was passed. I am*afraid the arguments in my opinion is plainly unsound. The day on 'Which the cross‑appeal was riled by the petitioners and both the appeals continued, the appeal of the petitioners could be deemed to be cross‑objections. It will be with reference to date of filing of the ,cross‑appeal that it will be deemed to be cross‑objections and not the date of final judgment. Even otherwise, if the argument of learned counsel for the respondents is given any weight, the same must also fail for the reason that in both the appeals as the record shows the arguments were heard partly on 25‑5‑1985 and on this date the appeal of the petitioners can safely be presumed to have been heard as it could be heard as cross‑objections. The argument as raised is mere a technicality and does not effect the legal position. As provided in Order 41, Rule 22, C.P.C, even if the appeal is withdrawn the cross‑objections are required to be considered and disposed of on merits. This rule would be equally applicable where a cross appeal is to be treated and disposed of as cross‑objection.

9. For the foregoing reason, the learned lower Appellate Court failed to exercise jurisdiction in not considering and deciding the appeal/cross‑objections of the petitioners on merits. The impugned judgment and decree is not sustainable in law. This revision petition is accepted, the judgment and decree I passed by the learned lower Appellate Court dated 10‑7‑1985 is set aside. The case is remanded to the learned l6wer Appellate Court to decide the appeal/cross‑objections riled by the petitioners on merits in accordance with law. The parties are left to bear their own costs. H.B.T./S‑908/L Case remanded.