1999 PLP 108 (SCMR)

IRSHAD HASAN KHAN, J.

This petition for leave to appeal is directed against the judgment dated 18-6-1997, passed by the Lahore High Court, Lahore in Civil Revision No.245~ of 1996.

2. The petition is barred by 21 days. Delay is sought to be condoned on two-fold ground; first, that Copying Agency did not intimate the petitioner about the completion/preparation of the copy nor intimated to take its delivery; secondly, the copy wag prepared on 31-7-1997 and even if period of limitation is counted from this date the last date of limitation falls within summer vacation when this Court was closed on that account, therefore, the period of limitation would stand extended and the petition could be filed even on reopening of the Court, in view of section 4 of Limitation Act (IX of 1908). As regards the first point, suffice it to say that there is no document on record to prove that t he petitioner was not intimated by the Copying Agency as to the date when the impugned judgment was ready. As regards the second contention, Mr Ali Muhammad, learned counsel for the petitioners strongly relied on Fazal Karim v. Ghulain Jilani (1975 SCMR 452), wherein this Court took the view that under section 4 of the Limitation Act (IX of 1908) the period during which the Court remains closed on account of vacation, is to be excluded for the computation of limitation and the Notification dated 12-5-1954 issued by the Peshawar High Court cannot take precedence over the statutory provision. It was further observed that the Notification in question merely gives an option to the applicants to file petitions during vacation if they so choose. It was further observed that the word "office" used in the notification was not synonymous with "Court" as used in section 4 of the Limitation Act, therefore, the option so conferred on an applicant cannot be construed so as to take away a statutory right. On these premises it was held that the appeal though filed during vacation could be filed on the reopening of the Court. Reliance was also placed on Muhammad Ramzan v. Ahmad Bux (1991 SCMR 716), wherein it was held that if a party does not claim exclusion of any period of time under section 12(2) of the Limitation Act (IX of 1908) such party cannot be deprived of benefit of section 4, in case the ordinary period of limitation expires on a holiday to prefer the appeal on the reopening of the Court.

4. The case-law above referred does not advance the case of the petitioner. Suffice it is say that no notification has been issued by this Court giving option to an applicant to file petition for leave to appeal as issued by the High Court referred in the case of Fazal Karim (supra). Furthermore, both these cases relate to filing of petitions during vacation in the High Court by such persons as may choose to do so. The learned counsel for the petitioners was labouring under the impression that the Registries of this Court are closed during vacation. The closure of the Peshawar High Court at that time or any other High Court at any particular time is not relevant for the purpose of computing the period of limitation for petitions to be filed in the Supreme Court. Suffice it to say that when this Court is in vacation it cannot be said that its Registries are also closed. As a matter of facts, the Registries are always open for receiving the petitions and other work. The Hon'ble Judges of this Court invariably work throughout vacation. Reference may also be made to the provisions contained in Rule 2, Order 11 of the Supreme Court Rules, 1980 specifically providing for the offices of the Court to remain open during the vacation and the winter holidays. The Hon'ble Chief Justice of Pakistan has also declared vide Office Order No.F-9/2/7385/SCA, dated 3-7-1985, the Registries of the Supreme Court of Pakistan as non-vacation offices. Clearly, the offices of the Court remain open during vacation and the winter holiday and usual working hours are observed. There is, therefore, no force in the contention that as the Court was on vacation the petitioners did not file the petition because the Registries of the Court are always open for receiving petitions and other work. Reference may be made to Fateh Ali Khan v. Subedar Muhammad Khan (1970 SCMR 238), wherein it was held that section 4 of the Limitation Act (IX of 1908), can only be applied in cases where there was no arrangement for doing the business of the Court during the vacation. Since this Court was open for receivingi petitions and for doing other work, section 4 of the Limitation Act has no application. Also see Jumma. v. Ntaulvi Mubarak (1971 SCMR 779), wherein following the full Court's decision of this Court in the case of Fateh Ali Khan (supra), this Court declined to condone the delay due to the fact the offices were open for their ordinary and routine business which includes the reception of -petitions for leave to appeal. It would be advantageous to reproduce the following passage: - "The learned counsel for the petitioner has argued that under section 4 of the Limitation Act, the period of vacation during which the Court remained closed, has to be excluded. When it was pointed out to the learned counsel that the offices of the Court remained open during the vacation as per the directions issued by the learned Chief Justice of the Court in, thus behalf, he submitted that the direction in question does not specify that the offices were also to remain open for purpose of receiving petition to the Court. This argument is entirely misconceived, as the offices were open for their ordinary and routine business which includes the reception of petitions for special leave to appeal. The learned counsel then argued that the rule (rule 3 of Order 11 of the Supreme Court Rules), under which the notification was issued by the learned Chief Justice, was ultra vires of section 4 of the Limitation Act. This argument is based on the contention that the offices of the Court are separate from the Court, and even when the offices were open, the Court shall be deemed to remain closed. This again is a wholly untenable argument. The offices are a part of the Court, constituting an administrative and an adjunctive judicial wing of the Court, which were open during the vacation as during the working days for their normal office work, which included the receipt and registration of petitions for leave to appeal. "

5. Resultantly, the petition is dismissed as barred by time and leave declined A.A./L-9/S Leave refused