P (PLP)

A I R 1934 Lah. 135 ; A I R 1935 Lah. 625 ; A I R 1931 Sind 53 ; A I R 1936 Sind 53 ; A I R 1922 P C. 352 ref to. (b) Evidence Act (I of 1872)

S. 114‑Presumption of correct ness of Proceedings of Court‑‑ Minimised when talk Performed by subordinates. The sanctity which attaches to the orders written by the presid ing officer himself undoubtedly is seriously minimised when it is found that the task which the law enjoins to be performed by the presiding officer is unhappily entrusted to the subordinates. (c) Civil Procedure Code (V of 1908)

S. 100‑Finding of fact‑‑Not according to material. on record‑High Court may dis agree with finding. Where the finding arrived at by the lower Appellate Court is not‑ the result of a correct appreciation of the material on the record ‑ it is within the province of the High Court to disagree with that finding. ORDER.‑

The case out of which the present appeal has arisen is a very unfortunate one, as nothing substantial has been done therein during the last ten years. It was a simple prey emption suit instituted on 6th September 1940. After various hearings in that case an order was passed on 16th January 1949 under section 22 (1) directing the plaintiff .to deposit in Court 1/5th of the consideration of the sale or to give security thereof, on the next hearing which was fixed for 12th February 1941. It was on 20th February 1.947 that an objection was raised by the vendee that as the order of the Court dated 16th January 1941 to deposit 1/5th of the sale proceeds or to furnish security to that extent was not complied with, hence the plaint should be rejected the plaintiff however contended that the order of the Court dated 16th January 1941 was complied within its strict terms as the security was furnished on 12th February 1941 the date fixed by the Court for that purpose. The Court however came to the conclusion that the order dated 16th January 1541 was complied with on' 12th March 1941 and not on 12th February 1941. The plaint was therefore rejected. This resulted in an appeal to the learned Senior Sub‑Judge, Rahimyar Khan who upheld the decision of the Court below and dismissed the appeal. This is a second appeal before this Court. A preliminary objection was raised by the learned counsel for the respondent that the appeal in the lower Appellate Court was barred by time. It was contended by the opposite party that as no cross objections were presented consequently this contention could not be entertained‑ The learned counsel for the respondent relied on the provisions of Order XLI rule 22 and contended that it was not necessary for him to wise this objection by way of cross objections alone, but he could do so independently of the cross objections. He however with intent to cut short the controversy accepted the contention of the learned counsel of the appellant to put in cross objections as there was time for the counsel of the respondent to do so. He was, therefore allowed to argue this point. In order to dispose (if this question the relevant facts in this appeal should be kept in view. The case in the original Court was decided on 17th November 1948. An application for the copies and the judgment and decree was made on the same date. Copies were ready on 22nd November 1948. They were delivered on 8th of December 1948. It was admitted by the learned counsel for the respondent that if the period from 17th November 1948 to 8th December 1948 be excluded the appeal would be within time. His contention was that the period from 17th November 1948 i. e., the date on which the judgment was delivered till 22nd November 1948 on which the copies were ready to be delivered could alone be excluded under law and consequently the appeal was barred by time. In support of his contention he relied on 1935 Lah. 625 and 1931 Sind

53. In 1935 Lah. 625 it was held that section 12 of the Indian Limitation Act merely allows time requisite for obtaining the copies and the question what that period is, is a question of fact to be determined on the circumstances of each case. Time which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order cannot be regarded as "requisite" within the meaning of subsection (2), of section

12. When the appellant is guilty of gross negligence time cannot be excluded. This proposition was laid down on the view adopted by their Lordships of the Privy Council in 1922 P. C.

352. This is a salutary proposition which has always been kept in view by the Appellate Court in determining the question of limitation. The same view finds place in 1936 Sind 53 relied on by the learned counsel. It is sufficient for me to observe that the facts in both the cases quoted above are different from the facts of the present case. The question then arises whether the present case from its facts falls within the ambit of subsection (2). section 12 of the Limitation Act (1908). It has been pointed out by me that the appellant applied for the copies of the judgment and the decree on the date the judgment was pronounced. No date was fixed by the Copying Department for the appellant to take their delivery. The appellant appeared on 8th December 1948 to take the copies and they were delivered to him. The rules on this question are very inadequate. Whatever they are given in Chapter 2, pages 223 And 225 of Guldasta‑Manzoor. Those orders‑do not lay down specifically that the Copying Department shall fix a date for the delivery of the copies to the applicant. Rule 9 only says that the copyist will not keep the copies, after they are ready, in his possession for more than four days. If the applicant does not appear to take their delivery within the four days, the copyist must despatch them by post to the petitioner. The period within which the copyist is bound to prepare the copy is nowhere laid down in those rules. It rests with him alone. He, may prepare them in a week, within ten days or a fortnight or a month. There is no fixed period for that purposes nor there is any period fixed for the applicant, to take the delivery of the copies. This defect in the rules is very misleading and no responsibility can be fixed either on the copyist or on the petitioner. In face of these circumstances I have to see whether the applicant was guilty of negligence in obtaining the copies of judgment and decree. My answer would be in the negative. The, appellant applied for the copies of the judgment and decree on the date the judgment was pronounced to him. No date was fixed by the Copying Department for the delivery of the copies. He took the copies within the period of 3 weeks. In the absence of any direction by the copyist to take the delivery of the copies on a particular date it cannot be said that the petitioner had spent an inordinate time in getting the copies and was therefore guilty of negligence. If that be the case then I am of opinion that he is entitled to exclude the period from 17th November to 8th of December 1948 and his appeal therefore in the lower appellate Court was within limitation. 1934 Lah. 135 quoted by the learned counsel of the appellant has however no application to the present case. I therefore overrule the preliminary objection of the learned counsel for the respon dent. The next question is whether the appellant had complied with the order of the original Court, dated 16th January 1941 and had furnished the security on 12th February 1941. The contention of‑ the appellant is that the document was written on 12th February 1941. It bears stamps which were purchased on 12th February 1941. I was present in Court on 12th February 1941. There were no reasons for him motto produce the security bond on 12th February 1941, when he himself was present in Court and it was ready and complete in every respect. The date 12th March 1941 on the order is only a clerical mistake because there were no grounds for him to appear in the Court oil 12th March 1941 as it was a holiday. It is admitted by the learned counsel for the respondent as well as by both the. Courts below that 12th March 1941 was a holiday. It is also admitted that no other work was done on the date. No special reasons to entertain that petition on 12th March 1941 are given: Both the Courts below have been influenced by the presumption 'arising under‑ section 114 of, the Indian Evidence Act. i.e that all the proceedings in the judicial Courts are presumed to be correct. But there is only a presumption about them and whenever there is a presumption it is always rebuttable. The question arises' whether that presumption was rebutted is the present case. My reply 'is that it was. In addition to the facts which I have stated above and which may be repeated here it must be kept in view that all the orders in this file were written upto that date .in the hand of an Ahlkar anal not by the Presiding Officer, The sanctity which attaches to the orders written by the Presiding Officer himself undoubtedly is seriously minimised when it is found that the task which the law enjoins to be performed by the Presiding Officer is unhappily entrusted to the subordinates. It is a common slur on the judiciary in this State, and I have repeatedly observed that the subordinate judiciary must be alive to its responsibility and give up the most objection able practice of entrusting the files to their subordinate estab lishment to record important orders in Judicial cases. There is no denial of the fact that the order regarding the presence of the plaintiff on 12th February 1941 is in the hands of an Ahlkar. The order on zamanat mama is also in the bands of the same Ahlkar. The zamanat nama having been written and completed on 12th February 1941 and 12th March 1941 being a close day carried on irresistible presumption that it was presented on 12th of February 1941 to the Court and that the 12th of March 1941 on the order sanctioning the security was nothing but a clerical mistake, and that the presumption on which both the Courts below had acted stands rebutted from the circumstances considered by me. There is another point which in my view resulted in that clerical mistake, The order of the presence of the plaintiff was recorded on the file. The case was fined in the month of March and when the zamanat nama came up before the Ahlhar he probably committed the mistake of writing the figure 3 i.e., March instead of figure 2 i.e., February. At any rate it is a presumption. The other circumstances to which I have referred settled it once for all that this zamanat nama was not produced on 12th of March 1941 but on 12th of February 1941 the date fixed for that purpose by the Court. Before I close this judgment I should refer to a legal objection raised by the counsel of the appellant, that is that the order carried with it inherent legal defect as no specific date which was required to be fixed according to section 22 of subsection 1 of the Pre‑emption Act was fixed in the order of 16th January 1941 to deposit 1/Sth of the sale proceed or to furnish a security thereof and his client even if he did not obey was 'not bound to obey it.. In support of his argument the learned counsel referred me to 1921 Lah. 392 where it was laid down that under section 22 (1) it is imperative for the Court to fix a time within which the deposit must be made and where the Court failed to do so the preemptors could not 'he penalized for having disobeyed an order which was not made. Reference was also made to 1939 Lah. 25 in which similar proposition was laid down. There can be no quarrel with that proposition. The question in the present case is whether the order in dispute was or was not a compliance of section 22 (1) of the Pre‑emption Act. In my opinion reference to the order would show that it was. Section 22 (1) enacts that a date, should be fixed to deposit 1/5th of the sale proceeds or to furnish a security thereof. The order, dated 16th January 1941 reads:‑that the plaintiff shall comply with that order on the next hearing and the next hearing was specified as 12th February 1941. It is clear, therefore, from that order that the date as required by section 2.2 (1) was specified. It cannot, therefore, be said that the order was defective in law, I have however held that the Courts below were wrong that it was not complied with. My findings are that it was complied with. Mr. Mustafa Khan contended that the question debated before me is a question of fact and when there is a concurrent finding of the Courts below on a question of fact, the High Court is not competent to go behind that finding. I do not agree with him that it is always go, 1 find support for my view from 1940 Lah. 329 where it was observed, "It is true that a finding of fact arrived at by a lower appellate Court is binding on the High Court, however erroneous it might be. But this dictum pre‑supposes that the finding is honest, that it has been arrived at on the facts of the case uninfluenced by any extraneous considerations, but it is the result of a correct appreciation of the material on the record and that it is based on evidence and not on surmises and conjectures. Any finding of fact which does not satisfy any of the requirements stated above will not be finding on the High Court''. As stated above the finding arrived at by the lower appellate Court is not the result of a correct appreciation of the material on the record and consequently it is within the province of the. High Court to disagree with that finding. With these observations I would accept the appeal, sat aside the order rejecting the plaint and directing the suit to be restored to its original number and 'to proceed with it in accordance with law and to dispose of it expeditiously, giving it preference to the other cases pending in the Court. 1 would like that this case should , go to the Court of Senior Sub. Judge Rahimyar Khan for early disposal. The parties shall appear in this Court on 8th of August 1950. They are directed to bear their own costs in this Court. The costs in the Court below shall be the costs in the cause. K.M.A./A.H. Appeal accepted.