P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.

A preliminary objection was raised by the respondents learned counsel that this appeal is not maintainable because it was filed beyond the time prescribed by law. The judgment of the lower appellate Court was pronounced on the 14th of June 1954. It is conceded by the appellant's learned counsel that after allowing the time for obtaining copies of the judgment and decree of the lower appellate Court the appeal should have been filed on the 8th of October 1954. He, however, contends that as Order XLII, rule 2 of this Court requires the filing of a copy of the trial Court's judgment as well with the appeal, he is entitled to the time which was thus spent and which in this case was from the 5th of July 1954, until the 24th of October 1954. It is not denied by the respondent that if this contention of the appellant is held to be correct, then the appeal was filed within time. Reliance was placed by the appellant on ruling of justice Agha Haidar in Mst. Ghulam Aishan Bibi v. Muhammad Sharif (A I R 1936 Lah. 1007). The judgment of the lower appellate Court in that case was delivered on the 15th of November 1935. Copies of the judgment and decree of the lower appellate Court were applied for on the 5th of February 1936, and obtained on the 8th of February 1936. Thus allowing for the four days spent on obtaining the copies the appeal was within time until the 17th of February 1936, while it was actually filed on the 24th. The copy of the trial Court's judgment was applied for on the 4th of February 1936, and obtained on the 15th February. There is a whole string of rulings of the former High Court of Judicature at Lahore in support of this proposition that a High Court has no power to amend any provision of the Limitation Act by framing or amending the rules in the Code of Civil Procedure vide Madangopal v. Malawa Ram (68 1 C 777), Gurdit Singh v. Charan Das (721 C 797), Babu Singh v. Mangat Ram (100 1 C 854), Shah Qumari Charan v. Din Dayal (148 1 C 818), George Gowshala v. Balak Ram (A I R 1927 Lah. 717), Sardar Prithi Pal Singh v. Pandit Hans Raj (A I R 1939 Lah. 378) and Chulam Husain Bahadur (P L D 1954 Lah. 361). It is, however, also a settled proposition that when the rules of a High Court require a second appeal to be presented along with a copy of the trial Court's judgment, the delay in filing the appeal in so far as it is covered by the time spent in obtain?ing a copy of the judgment should ordinarily be condoned under section 5 of the Limitation Act. The learned judge in Mst. Aishan Bibi's case observed as follows :- "It is perfectly true that section 12, Limitation Act does not make any mention of the judgment of the trial Court in second appeal and the time, which is excluded for the purpose of computing the period of Limitation, is that which is taken up in the preparation of the copy of the judgment and decree appealed against ; but, having regard to the rules framed by this Court, the appellant can claim the benefit of the provisions of section 5, Limitation Act, and ask the Curt for excluding from the period of limitation the time spent in obtaining the copy of the trial Court's judgment????????????????????????????????????. I would, therefore under the circumstances of .the case extend the period of limitation under section 5, Limitation Act, by excluding the period spent in obtaining the copy of the judgment of the trial Court". It will be seen that in that case .no question of condoning the delay on account of the time spent in obtaining a copy of the trial Court's judgment arose because admittedly the appeal was within time until the 17th of February and the copy had already been obtained two days earlier on the 15th of February, and that the further week's delay from the 17th until the 24th was not referable to the obtaining of that copy. This delay had to be condoned, if at all, on some other ground ; but no such ground is mentioned in the judgment. The learned judge undoubtedly held that the period of limitation for filing an appeal could be extended by the time spent in obtaining the copy of the trial Court's judgment. He, however, overlooked that no extension of the period of limitation is permitted by section 5 and that only the delay beyond that period may be condoned thereunder. The learned Judge relied on the ruling of a Division Bench, in George Gowshala v. Balak Ram (A I R 1927 Lah. 717), of which he himself was a member. As will appear from the following quotations, that ruling does not only not support the proposition laid down in Mst. Aishan Bibi's case but runs counter to it: "Under the Law the appellant is not entitled as of right to deduct the period spent in obtaining a copy of the first Court's judgment, but having regard to the fact that the appellant had actually made an application for a certified copy of that Court's judgment on 2nd November 1923 before the limitation for filing the second appeal had expired, we are prepared to make an allowance of the time actually spent in obtaining that copy, namely, upto the 5th of January 1924. If the appellant had filed the copy on the 5th January or very soon afterwards, we would have held the appeal to be within time but the appellant further delayed the filing of the copy for nine days and no explanation what-ever is offered for this delay. It is settled law that in order to have the benefit of section 5 it is the duty of the appellant to explain the delay for every day that elapses beyond the period allowed by the Limitation Act for filing an appeal". Nor was the learned Judges' attention drawn to the earlier Division Bench ruling in Gurdit Singh v. Charan Das (72 I C 797), which is to the same effect. I, therefore, hold that the time allowed by law for filing the present appeal expired on the 8th of October and that the delay thereafter until the 24th of October 1954, when the copy of the trial Court's judgment was obtained, can only be condoned, if at all, under section 5 of the Limitation Act. It is the duty of the appellant to satisfy the Court that there was sufficient cause for the delay R between the 25th of October 1954, and the 3rd of January 1955, when this appeal was actually filed. According to the affidavit filed with the application under section 5 of the Limitation Act, the appellant had come to Lahore for filing the appeal but was informed by a counsel that a copy of the first Court's judgment was necessary "and that the time requisite for obtaining the same would be allowed when computing the time requisite for filing the appeal"; that the petitioner "started having fever from 25th October 1954 (a day after obtaining the copy of, the first Court's judgment) and was not able to move about till 20th December 1954"; and that "he was only able to sent the papers to him (his counsel) towards the last week of December 1955". Even assuming the allegation regarding the petitioner's illness to be correct, he is still to give an explanation for the delay between the 20th of December 1954, and the 3rd of January 1955 ; and there is none forthcoming. As regards the alleged advice of the counsel. the counsel has neither been named nor his affidavit filed. Every erroneous advice of the counsel is not sufficient to condone the delay beyond the prescribed period of limitation. Learned counsel for the appellant informed me that his client does not know English and it is a matter of considerable surprise as to how he could have calculated, while in his village, the exact period of limita?tion within which the appeal had to be filed. He had admittedly seen his counsel only before the copy of the trial Court's judgment was obtained. This circumstance makes the allegation about the counsel's advice suspicious. The petitioner did not come to Lahore himself to file the appeal. He admittedly sent "the papers" to his counsel. He could have easily done so soon after he obtained the copy on the 24th of October 1954. There is thus no ground for condoning the long delay between the 25th of October 1954 and the 3rd of January 1955. The appeal is, therefore, dismissed with costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.