P L D 2013 Lahore 269 (PLP)

Main Case, C.M. No.2 of 2012 The learned counsel representing the respondents raised a preliminary objection that instant Intra Court Appeal is barred by time and contended that in view of Article 151 of the Limitation Act, Intra Court Appeal had to be filed within twenty days of the order or judgment passed by learned Single Judge in chamber and attaching certified copy of order or judgment was not required. The learned counsel argued that here in this case the order was passed by learned Single Judge in chamber on 12-9-2012, the last date of filing the ICA was 2-10-2012, but this appeal was filed on 10-10-2012, therefore, it is barred by eight days. Lastly, the learned counsel while referring to certified copies of documents including that of the impugned order, urged that certified copies had been obtained by the appellant for Supreme Court purpose, therefore, even otherwise, the time consumed in obtaining such copies, could not be excluded. In support of his contentions learned counsel placed reliance on the case "BOARD OF GOVERNORS, AREA STUDY CENTRE FOR AFRICA AND NORTH AMERICA, QUAID-E-AZAM, UNIVERSITY ISLAMABAD and another v. Ms. FARAH ZAHRA" (PLD 2005 SC 153), "MUHAMMAD ISLAM v. INSPECTOR-GENERAL OF POLICE ISLAMABAD and others" (2011 SCMR 8)

2. On the other hand, learned counsel appearing on behalf of the appellant argued that High Court Rules and Orders Volume-V Chapter-1 Rule 4 has specifically provided that Section 12 of the Limitation Act, 1908 would be applicable to compute the period of limitation in filing the ICA, therefore, the instant Intra Court Appeal is within time, as the period consumed in obtaining certified copy of the order, impugned herein, has to be excluded from consideration. In support of his contentions learned counsel placed reliance on the case "AFTAB ALAM KHAN v. THE SETTLEMENT COMMISSIONER and 3 others" (PLD 1972 Quetta 97), "ADDITIONAL CHIEF ENGINEER (ARMY), OKARA CANTT. and others v. Messrs NASIM CO. (Pvt) LTD" (1991 CLC 1476).

3. We have heard the arguments of learned counsel for the parties and perused the record.

4. There is no dispute about the factual position that the order was passed by learned Single Judge in chamber on 12-9-2012, the Intra Court Appeal had to be filed within twenty days but the instant appeal was preferred on 10-10-2012 i.e. with delay of eight days. There is also no cavil to the proposition that under High Court Rules and Orders Volume-V, Chapter-1, Rule 4, the memorandum of appeal is not required to be accompanied by a copy of decree, order or judgment appealed from, but it is to be seen that this Rule itself further provides that "The period of limitation prescribed in this Rule shall be computed in accordance with the provisions of section 12 of the Limitation Act, 1908." Section 12 of the Limitation Act, 1908 deals with computation of period of limitation, which includes the time consumed in obtaining certified copies of the impugned order/judgment. Therefore, by making section 12 of the Limitation Act, 1908 applicable even in computing the period of limitation about Intra Court Appeal, it can safely be said that although filing of certified copy of the order/judgment of learned Single Judge in chamber, is not required to be attached with an Intra Court Appeal, but by a liberal interpretation of the above Rules it can be said a deviation from settled practice of appending certified copy of impugned order/judgment is just a facility for the litigant and where under a prima facie bona fide impression a party considers that a certified copy was required for filing Intra-Court Appeal and that solely formed the reason in delayed filing of Appeal, such delay has to be condoned in suitable cases depending upon the facts and circumstances of such case, especially where valuable rights of the parties are involved and technical knock out is expected to infringe such rights. Therefore, we hold that benefit of Section 12 of the Limitation Act, 1908 is available to the present appellant and when the time consumed in applying for certified copy of the impugned order till its preparation and filing of Intra Court Appeal is excluded, the instant appeal becomes within time. As regards the objection of learned counsel for respondents i.e. use of certified copies for instant Intra Court Appeal, which in fact particularly had been obtained for Supreme Court purpose, a careful perusal of the relevant Rules would show that there does not exist any distinction in this respect, nor could any case-law be referred by the learned counsel. In this view of the matter, when no specific prohibition is available in the Rules about procurement of certified copies for Supreme Court use or for any other purpose, it would be highly unjust to import a negative impression in this respect. Consequently, the preliminary objection of learned counsel for the respondents is therefore, overruled.

5. The main Intra Court Appeal along with C.M. No.2 of 2012 shall be listed for arguments on merits on 20-12-2012 and meanwhile the operation of the impugned order dated 12-9-2012 shall remain stayed. KMZ/N-2/L Order accordingly.