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Regular Second Appeal No. 412 of 1958, decided on 13th March 1968.
O. XLII, r. 2 & S. 100 Second appeal before High Court‑Time spent by appellant in obtaining copy of "trial Court's" judgment as required under O. XLII, r. 2‑Constitutes "sufficient cause" within meaning of S. 5, Limita tion Act, 1908 and covers even period lapsing between actual receipt of copy and filing of same in High Court‑Limitation Act (IX of 1908), S. 5.
Second appeal under section 100 having been filed in High Court was not accompanied by a copy of judgment of trial Court as required under O. XLII, r. 2 (added by High Court, Lahore). Plaintiff had applied for copy of trial Court's judgment on 18‑8‑1958 and the same was delivered to him on 17‑10‑1958. It was, however, filed in High Court on 6‑11‑58. It was contended that time spent in obtaining copy of trial Court's judgment was a "sufficient cause" within meaning of section 5, Limitation Act,1908, and as such, the whole period spent therein was liable to be allow ed and not merely time up to 17‑10‑1958. Contention of opposite party was that whole time spent in obtaining copy of trial Court's judgment cannot be allowed and that since the plaintiff got copy on 17‑10‑58 he had no justification to sit over it for twenty days more to file it on 6‑11‑1958:
Held, (a) Ordinarily, a second appeal if filed along with the copies of the judgment and decree of the lower appellate Court is quite maintainable and it is only as a consequence of a rule of this Court as formulated in rule 2 of Order XLi1, C. P. C. that a copy of the judgment of the trial Court is required to be filed along with it. If the second appeal is filed without a copy of the judgment of the trial Court, it is incompetent and can be dismissed for this short reason. It seems incongruous to direct an appellant to file a copy of the judgment of the trial Court, but not to allow him time spent in obtaining that copy. To remain consistent on the subject, if a copy of the trial Court's judgment is a must, it is only fair to allow time spent obtaining that copy.
(b) Section 12 of the Limitation Act statutorily allows time spent in obtaining a copy of the judgment and decree of the lower appellate Court. This rule of statute is not merely a technical rule but has a wisdom behind it.
The reason behind allowing time under section 12 of the Limitation Act is that without getting a copy of the judgment under appeal, the appellant may not be able to properly draft his grounds of appeal. In second appeals, apart from this reason, the High Court itself requires‑(probably for its own satisfaction as to whether the case is covered by section 100, C. P. C. or not)‑the copy to be filed. Both these causes are so "sufficient" within the meanings of section 5 of the Limitation Act that they warrant that the time spent in obtaining a copy of the trial Court's judgment should be allowed to the appellant. If once the principle is accepted that obtaining of the copy of trial Court's judgment is a "sufficient cause", then all the time spent on it should be, allowed and not merely a portion of it, acid for the period lapsing after obtaining of the copy no further expla nation need be asked for, if it is covered by giving allowance for the whole time involved in obtaining the copy.
Jijibhoy N. Surty v. T. S. Chettiyar A I R 1928 P C 103; Wajid Ali Shah v. Nawal Kishore I L R 17 All. 213; Keshar Sugar Works, Bombay v. R. C. Sharma and others A I R 1951 All. 122; Punjab Co‑operative Bank Limited, Lahore v. Official Liquidators Punjab Cotton Press Company Limited and others A I R 1941 Lah. 257; Mst. Lalit Kuari v. Maha Prasad Narain Sinla A I R 1947 Pat. 329; Municipal Board, Lucknow v. Bhagwan Das A I R 1959 All. 500; Mukandi Ram Sant Ram and others v. Exe cutive Engineer, Sangrur Circle and others A I R 1956 Pepsu 40; Thacker Shivji Kumverji v. Bhatia Thacker Kalyanji Rathanshi A I R 1952 Kutch 48; Gauri Shankar and another v. B. Kachi Nath and another A I R 1934 All. 367; Kanshi Ram v. Karam Naraifa and another A I R 1921 Lah. 124; Ramalinga Annavi v. Narayana Annavi and others A I R 1918 Mad. 418(1); KunivarRojandra Baha dur Singh v. Rai Rajeshwar Bali and others A I R 1937 P C 276; Chhote Lal v. Jamnadas A I R 1963 Madh. Prad. 20; Sint. Kaushalya v. Wisakhy Ram Mohan Lal A I R 1961 Pb. 521; Sube dar Baman Ram v. Mt. Masti and another A I R 1960 Hima. Prad. 14; Sarmukh Singh v. Vhanan Singh and others A I R 1960 Pb. 512; Gopi Nath Pandey v. Bhukhan A I R 1955 Pat. 301; Arura v. Karam Din A I R 1947 Lab. 76; Doarka Das Kedar Bux v. Gajanan Jagannath and others A I R 1946 Cal. 10; Kishan Chand v. Muhammad Hussain A I R 1942 Lab. 94; Kayambu Pillai and another v. Court of Wards by Collector, Trichinopoly District and others A I R 1942 Mad. 170; Sudama Rai and others v. Bisheshwar Prasad and others A I R 1935 All. 92; Kamiruddln Malik v. Sna. Bishapriya Showhurani A I R 1929 Cal. 240; Naga Po Kaa: v. Naga Shwe Dat A I R 1914 Upper Burma 49; Anjora hunwar v. Babu and another I L R 29 All. 638; Kichilappa Naickar and another v. Ramanujam Pillai P L R 25 Mad. 166; Krishna v. Chathappar 1 L R 13 Mad. 269; Jag Lal v. Har Narain Singh I L R 10 All. 524; Brij Indar Singh v. Lala Konshi Ram and others A I R 1917 P C 156; Maula Bakhsh v. Udham Singh and others A I R 1928 Lah. 136; Karam Bakhsh and others v. Daulat Ram and others 183 P R 1888; Dullo Mal Ram Lai v. Ganga Ram Lalji Fain A I R 1929 Lab. 824; Mulkh Raj and others v. Gurditta Shahari Chand A I R 1929 Lah. 283; Fateh Nur and others v. Jiwan A I R 1928 Lah. 964; Firm Bishan Das‑Bijlal v. Fit‑in Brij Moh:an Lakshani Narain A I R 1935 LA. 844; Abdul Ghafoor and another v. Sher Ahwad and others P L D 1961 Lah. 366; Barda Prasanna ind and others v. Kubbad Mia P L 1J 1962 Dacca 381; Bhairoa Ghulam and others v. Ram Autar Singh A I R 1921 All. 23; hindeshri Pershad and another v. Afzal Khan and others A I R 1921 All. 242; Taj Din v. Mrs. R. B. Alvi and two others P L D 1963 Lab. 335; George Gowshala v. Balik Ram A I R 1927 Lah. 717 ; Sardar Prithi Pal Singh v. Pandit Hans Raj and others A I R 1939 Lah. 378; Ilolat lilal v. Sri Rain and others A I R 1921 Lah. 73; Muhammad Iqbal Khan v. Notified Area Committee, not Radha Kishan P L D 1957 Lab. 381; Ghulam Hussain and three others v. Bahadar and others P L D 1954 Lab. 361; Narsingh Salmi v. Sheo Parshad 42 I C 855; Gurdit Singh v. Charan Das 72 1 C 797; Dayala and others v. Heru and others 67 1 C 670 and Jagiri Ram v. Daulat Khan A I R 1928 Lah. 755 ref,
S. 12 (2)‑Time requisite for obtaining copy of decree or order appealed from‑No intimation having been given by Copying Agency as to when copy might be ready‑Date of actual delivery of copy arid not its preparation, in such cases, held, to be reckoned to determine requisite time.
Gul Muhammad v. Allah Ditta P L D 1960 Lah. 443; Fouda Uraon v. Ganpat Ram A I R 1920 Pat. 278; Sheogobind v. Ablakhi I L R 12 All. 105 and Madan Singh v. Puran Singh A I R 1926 Lah. 84 ref.
Ghulam Mahmood Qureshi for Appellant.
Aamar Raza Khan for Respondent.
Dates of hearing: 28th and 29th February 1968.
Muhammad Afzal Khan Lodhi (hereinafter called the plaintiff) filed a suit for declaration that tire order, dated the 19th of May 1956, whereby he was dismissed from service (holding the post of a storeman) was illegal ; and that be was still in the service of Government of Pakistan ; eligible to all rights and privileges of the post aforesaid. The suit of the plaintiff was dismissed by the Senior Civil Judge, Rawalpindi on the 24th of February 1958. The plaintiff filed an appeal without any success which was dismissed by the learned District Judge, Rawalpindi solely on the ground that it was barred by time. The learned District Judge did not go into the merits of the case. The plaintiff has come up in second appeal to this Court, his grievance being, that the appeal before the learned District Judge was not barred by time and that the judgment of the said Court is not correct.
2. Unfortunately, the appeal of the plaintiff in this Court is also barred by time and as it was admitted subject to all just exceptions, the learned counsel for the respondent has submitted that there are no valid grounds for condonation of delay and that this appeal should also be dismissed as time barred.
3. The facts necessary in this behalf are that after allowing the time spent in obtaining the copy of the order of the learned District Judge, the limitation stood extended uptil the 22nd of September 1958, on which date the appeal was filed in this Court. The appeal, as originally filed was, therefore, quit‑, within time. But it suffered from another infirmity and that was that it was not accompanied by a copy of the judgment of the trial Court as required by O. XLII, r. 2 of C. P. C. as added by this Court. The plaintiff had applied for a copy of the trial Court's judgment on the 18th of August 1958, and the same was delivered to him on the 17th of October 1958. However, he filed the same in this Court on the 6th of November 1958. The plaintiff appellant has filed an application under section 5 of the Limitation Act praying that he may be allowed the time spent by him in obtaining a copy or the trial Court's judgment (of course the overlapping period to be counted only once) and that the delay for that reason may be condoned. This application has been resisted by the learned counsel for the defendant‑respondent, who has argued that under the law the whole time spent in obtaining the copy cannot be allowed and that since the plaintiff' got the copy on the 17th of October 1958, he had no justification to sit over it for twenty days more and to file it on the 6th of November 1958. From the side of the plaintiff‑appellant it is argued that the obtaining of a copy of the trial Court's judgment was a "sufficient cause" within the meaning of section 5 of the Limitation Act, and as such, the whole period spent therein is liable to be allowed and not merely time up to the 17th of October 1958.
4. The question which thus arises in this case is as to whether the time spent by an appellant in obtaining a copy of the trial Court's judgment for annexing it with the second appeal in the High Court under O. XLII, r. 2, C. P. C., as added by Lahore High Court, constitutes a "sufficient cause" within the meaning of section 5 of the Limitation Act and should be allowed or not. My answer is in the affirmative and my reasons for so holding are as follows :‑
(a) Ordinarily, a second appeal if filed along with the copies of the judgment and decree of the lower appellate Court is quite maintainable and it is only as a consequence of a rule of this Court as formulated in r. 2 of O. XLIL C. P. C. that a copy of the judgment of the trial Court is required to be filed along with it. If the second appeal is filed without a copy of the judgment of the trial Court. It is incompetent and can be dismissed for this short reason. It seems to me to be incongruous to direct an appellant to file a copy of the judgment of the trial Court, but not to allow him time spent in obtaining that copy. To remain consistent on the subject, if a copy of the trial Court's judgment is a must, it is only fair to allow time spent in obtaining that copy.
(b) Section 12 of the Limitation Act statutorily allows time spent in obtaining a copy of the judgment and decree of the lower appellate Court. This rule of statute is not merely a technical rule but has a wisdom behind it, as was pointed, out by their Lordships of the Privy Council in Jijibhoy. N. Surty v. T. S. Chettiyar A I R 1928 P C 103. It was held that‑
"The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attaching it by his memo randum of appeal. As to the judgment, no doubt, when the case does not come from upcountry, the practitioner will have heard it delivered, but he may not carry all the points of along judgment in his memory, and as Sir John Edge says in Wajid Ali Shah v. Nawal Koshore I L R 17 All. 213, the Legislature may not wish him to hurry to make a decision till he has well considered it." Following this principle some Courts went so far as to hold that even in cases where copy of the judgment under appeal was not required by law to be filed along with the appeal, still the time spent by the appellant in obtaining that copy should be allowed, because, the rule enunciated above is of a salutary nature and is not dependent upon copy being filed or not. Reference can be made for this proposition to Keshar Sugar Works, Bombay v. R. C. Sharma and others A I R 1951 All. 122, Punjab Co‑operative Bank Limited, Lahore v. Official Liquidators Punjab Cotton Press Company Limited and others A I R 1941 Lah. 257, Mst. Lalit Kuari v. Maha Prasad Narain Singh A I R 1947 Pat. 329, Municipal Board, Lucknow v. Bhagwan Das A I R 1959 All. 500, Mukandi Ram Sant Ram and others v. Executive Engineer, Sangrur Circle and others A I R 1956 Pepsu 40, Thaker Shivji Kunwarji v. Bhatia Thaker Kalyanji Rathanshi A I R 1952 Kutch 48, Gauri Shanker and another v. B. Kashi Nath and another A I R 1934 All. 367, Wajid Ali Shah v. Nawal Kishore I L R 17 All. 213, Kanshi Ram v. Karam Narain and another A I R 1921 Lah. 124 and Ramalinga Annavi v. Narayana Annavi and others A I R 1918 Mad. 418 (1). If the "principle" of the rule extends even to cases where copy is not required by law to be filed, it is all the more reasonable to apply it to those cases where copy of any judgment is required by law to be filed along with the appeal. Moreover, the same "general reasoning" which justifies allowance of time in such cases which strictly fall under section 12 of the Limitation Act, can justify allowance of time in those cases as well which may not be strictly covered by the wording of section 12 but by its principle, especially, when the copy required is such without which the appeal cannot be properly constituted. The reason behind allowing time under section 12 of the Limitation Act is that without getting a copy of the judgment under appeal, the appellant may not be able to properly draft his grounds of appeal. In second appeals, apart from this reason, the High Court itself requires (probably for its own satisfaction as to whether the case is covered by section 100, C. P. C. or not) the copy to be filed. Both these causes are so "sufficient" within the meanings of section 5 of the Limitation Act that they warrant that the time spent in obtaining a copy of the trial Court's judgment should be allowed to the appellant.
(c) Cases are available where the principle contained in section 14 of the Limitation Act, namely, time spent in bona fide proceedings in a wrong Court, has been held to constitute a "sufficient cause" within the meaning of section 5 of the Limitation Act and its benefit was allowed by analogy even in appeals to which strictly speaking the wording of section 14 did not apply. (It is to be noted that section 14 in its terms is confined to suits and not appeals). See Kunwar Rajendra Bahadur Singh v. Rai Rajeshuar Bali and others A I 1937 P C 276, Chhote Lal v. Jamnadas A I R 1963 Madh. Prad. 20, Smt. Kaushalya v. Wisakhy Ram Mohan Lai A I R 1961 Pb. 521, Subedar Baman Ram v. Mt. Afasti and another A I R 1960 Him. Prad. 14, Sarmukh Singh v. Yhanan Singh and others A I R 1960 Pb. 512, Gopi Nath Pandey v. Bhukhan A I R 1955 Pat. 301, Arura v. Karam Din A I R 1947 Lah. 76, Doarka Dos Kedar Bux v. Gnjanan Jagannath and others A I R 1946 Cal. 10, Kishan Chand v. Muhammad Hussain A I R 1942 Lab. 94, Kayambu Pillai and another v. Court of Wards by Collector, Trichinopoly District and others A I R 1942 Mad. 170, Sudama Rai and ethers v. Bisheshar Prosad and others A I R 1935 All. 92, Kami'ruddin Malik v. Sm. Bishapriya Showhurani A I R 1929 Cal. 240, Naga Po Kan v. Naga Shwe Vat A I R 1914 Upper Burma 49, Anjora Kunwar v. Babu and another I L R 29 All. 638, Kichilappa Naickar and another v. Ramanujam Pillai I L R 25 Mad. 166, Krishna v. Chathappar I L R 13 Mad. 269, Jag Lai v. Har Narain Singh I L R 10 All. 524, Brij Indar Singh v. Laid Kanshi Ram and others A I R 1917 P C 156 and Maula Bakhsh v. Udham Singh and others A I R 1928 Lab. 136. I find no harm in holding that like section 14, the principle contained in section 12 as well, constitutes a "sufficient cause" for extending period of limitation on account of the time spent in obtaining copy of the trial Court's judgment while filing a second appeal. In this context, it is further to mention that the principle of section 14 has been invoked in allowing time spent in review proceedings while extending period of limitation for filing an appeal. See Karam Bakhsh and others v. Daulat Ram and others 183 P R 1888, Brij Indar Singh v. Lala Kanshl Ram and others A I R 1917 P C 156, Dullo Mal‑Ram Lai v. Ganga Ram‑Laljl Ram A I R 1929 Lab. 824, Mulkh Raj and others v. Gurditta Shah Hari Chand A I R 1929 Lab. 283, Fateh Nur and others v. Jiwan A I R 1928 Lah. 964 and Firm Bishan Das‑Brijlal v. Firm Brij Mohan Lakhmi Narain A I R 1935 Lah. 844. This shows that the Courts have been accepting the principle contained in various other sections of the Limitation Act as constituting a "sufficient cause" under section 5 of the Limitation Act. The view which I am thus taking is quite in harmony with the legal trend in this context.
(d) It is to be pointed out that on the principle that section 5 of the Limitation Act can be invoked for claiming extension of time on account of the obtaining of the copy of the judgment of the trial Court, there is no quarrel and nor has any Court or Judge so far doubted it. The view which I have taken in the sub‑paragraphs mentioned above is, therefore, not a new view, though the reasons which I have advanced in support thereof are my own. (The contro versy, however, rests on a short compass, and that is, whether the entire time spent in obtaining a copy of the judgment of the trial Court) [overlapping period to be counted, of course, once as held in Abdul Ghafoor and another v. Sher Ahmad and others P L D 1961 Lah. 366 and Barda Prasanna Lod and others v. Kubbad Mia P L D 1962 Dacca 381] should be allowed or is a person required to further explain the delay for any period spent after actual receipt of the copy, even though the said period otherwise may be covered by giving allowance for the days spent in obtaining the copy. In my opinion, if once on principle it is accepted that the rule contained in section 12 of the Limitation Act constitutes a "sufficient cause" within the meaning of section 5, then the whole period should be allowed as is done in cases where principle of section 14 is applied to appeals and reviews, as indicated earlier. I may mention here that in cases in which time was spent In review, it was argued that immediately the review ended, why was institution of appeal delayed thereafter From the other side it was argued that if the following of a remedy of review was a "sufficient cause", then allowing whole time spent in review and the period after ending of the review proceedings should not be tackled on any different principle nor it should be independently examined and gone into. The latter view was accepted. See Karm Bakhsh and others v. Daulat Ram and others 183 P R 1888, Brij Indar Singh v. Laid Kanshi Ram and others A I R 1917 P C 156, Dullo Mall‑Ram Lal v. Ganga Ram Lalji Ram A I R 19 29 Lab. 824, Mulkh Raj and others v. Gurditta Shah Hari Chand A I R 1929 Lah. 283, Fateh Nur and others v. Jiwan A I R 1928 Lah. 964 and Firm Bishan Das‑Brijlal v. Firm Brij Mohan‑Lakhmi Narain A I R 1935 Lah. 844 and it was held that if after accounting for the time spent in review an appeal was within time, it should be treated as within time. Applying the same analogy, if once the principle is accepted that obtaining of the copy of trial Court's judgment is a "sufficient cause" C then we should allow all the time spent in it and not merely a portion of it, and for the period lapsing after obtaining of the copy no further explanation need be asked for, if it is covered by giving allowance for the whole time involved in obtaining the copy."
5. Coming to the case‑law on the subject, learned counsel for the defendant‑respondent referred to Bhairon Ghulam and others v. Ram Autar Singh (A I R 1921 All. 23), Bindeshri Pershad and another v. Afzal Khan and others (A I R 1921 All. 242), Tai Din v. Mrs. R. B. Alvi and two others (P L D 1963 Lah. 335), George Gowshala v. B flak Ram (A I R 1927 Lah. 717), Sardar Prithi Pal Singh v. Pandit Hans Raj and others (A I R 1939 Lah. 378), Molu Mal v. Sri Ram and others (A I R 1921 Lah. 73), Muhammad Iqbal Khan v. Notified Area Committee, Kot Radha Kishan (P L D 1957 Lah. 381), Ghulam Hussain and three others v. Bahader and others (P L D 1954 Lah. 361), Narsingh Sahai v. Sheo Prasad (42 I C All. 855), Gurdit Singh v. Charan Das (72 I C 797) and Dayala and others v. Heru and others (47 I C 670), wherein it was held that the whole of the time spent in obtaining a copy of the trial Court's judgment was not to be allowed and that for the period after the copy was obtained the appellant should further explain the cause of delay even though if foil allowance of time spent in obtaining tile copy vas to be given, such delay was duly covered. Suffice it to say that in none of these cases the matter was approached from the point of view which I have adopted here, nor due notice was taken of the Privy Council case reported in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (A I R 1937 P C 276) where their Lordship accepted the principle of section 14 of the Limitation Act as constituting a "sufficient cause" by itself and which analogy I am introducing with regard to the principle of section 12 as well. Again the said cases do not take note of the fact that when for example, whole time spent in review is allowed in the form of a "sufficient cause" for filing appeal late, then to remain consis tent, why not whole time requisite in obtaining copy of trial Court's judgment should also be allowed. In some of the cases, the reason given is that no Court has power to add to or vary or amend the provisions of the Limitation Act and since allowance of time spent in obtaining copy of the trial court's judgment is not provided for in section 12, therefore, if this time is allowed, that will tentamount to modifying or adding to the provisions of that section. With great humility and utmost respect, I venture to opine that it is not making additions to or modifications in section 12, but it is to consider as t o what it; a "sufficient cause" within the meaning of section 5 of the Limitation Act and as to whether the principle of section 12 constitutes such a "sufficient cause" or not as was examined by the Privy Council in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others, with regard to other similar section, namely, section 14 of the Limitation Act and about which it was then Held that its principle did constitute a "sufficient cause" within the meaning of section 5 when considered in the context of appeals.
6. Last but not the least about the point in hand, the provisions of section 12 of the Limitation Act read as follows :‑
"(12) Exclusion of time in legal proceedings :‑
(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.
(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded."
Subsection (2) of the above section says that time spent in obtaining a copy of the decree or order appealed from is to be allowed. In some cases where, for example, both the Courts have dismissed the plaintiff's suit, the plaintiff may be appealing from both the decrees and he may have framed his second appeal with a specific prayer that judgments and decrees of both the Courts below be set aside. Can it be said in such cases that the decree and order of the trial Courts is not being appealed against. If one is to go very strictly with the wording of section 12. Prima facie scope for argument is available that in appropriate cases time spent in obtaining copy of trial Court's decree or order may well be claimed. A somewhat similar view was taken in Jagiri Ram v. Daulat Khan (A I R 1928 Lah. 755), where the question arose as to whether an appellant filing an appeal after review, was entitled to the deduction of the time requisite for a copy of the original judgment which was the subject‑matter of a review application. The Court answered this point in the affirmative, holding that if the original judgment could be construed as one from which also the appeal is made, in other words, if the original judgment together with the judgment passed in review can be taken as really one judgment, then the time may be excluded. It was further held that where the second judgment did not give all the facts of the case but made an express reference to the first judgment for discussion of the full facts and it modified only a portion of the first judgment, it was merely supplementary to the first and jointly with it constituted as one judgment and the time requisite for the copies of both the judgments could be extended. However, since I have decided the present case with reference to section 5 of the Limitation Act and also because no arguments were addressed to me on this aspect of the case, I need not express my considered view on this point and leave it for discussion in some more appropriate case.
7. The result of the above discussion is that the delay in the institution of this appeal is liable to be condoned which I hereby do and repel the preliminary objection of the learned counsel for the respondent.
8. Coming to the appeal before the District Judge, it is to be phinted out that the plaintiff‑appellant applied for a copy of the trial Court's judgment on 25th of March 1958. The copy was prepared, attached and completed on 25th of April 1958. However, it was delivered to the plaintiff on 29th of April 1958. Before the learned District Judge, he filed an application under section 5 of the Limitation Act in which it was written that he had put in an application for obtaining copy of the judgment and decree through his counsel Mian Ataullah, Advocate. It was averred that the Copying Depart ment gave no date for the completion or the delivery of the copy and that Munshi of his counsel had off and on been making enquiries about the copy but to no effect. The application went on to state that the Munshi of the counsel made the last enquiry on 24th of April 1958 from the Copying Agency but they could not state as to when the copy could be delivered. On 29th of April 1958, on an, enquiry it was learnt that the copy was ready but that it would be given after 11 O'clock. In these circumstances, it was pleaded that there was no negligence on the part of the plaintiff because from his side enquiries had been made from time to time from the Copying Department for the date on which the copy might be ready or be delivered and that the delay in the institution of the appeal may be condoned. This application was signed by Mian Ataullah, Advocate, whose name had been quoted in it. It was supported by an affidavit of Muhammad Iqbal, Clerk to Mian Ataullah, Advocate. There was no rebuttal from the side of the respondent about these facts nor was any application made to cross‑examine the deponent of the affidavit. The statement made in the affidavit of Munshi Muhammad Iqbal was, in these circumstances, to be accepted as correct. The learned District Judge was of the view that as the copy was ready on 25th of April 1958, time, thereafter, could not be allowed to the plaintiff, because, according to him, it was only up to the date of the preparation of the copy that time was allowed. This approach with great respect to the learned District Judge is not correct, because, the plaintiff was not given any date on which he was to be given the copy. In the stamp affixed on the copy, there is an item reading:‑--
"Cause of delivery (it should really be delay) if the copy has been completed after the third day from the date of the application."
Even though the copy was delivered much beyond three days as contemplated in the said stamp endorsement, however, no explanation was endorsed against the aforesaid item which goes to show that the entries in the stamp endorsement do not represent all the sides of the picture and that on one important aspect they are conspicuously silent. No doubt, in the rules of the Copying Branch (as they existed in 1958) there was no provision to give any tentative date to an applicant, but I sent for an official of the Copying Branch of the Deputy Commis sioner's Office, Lahore, just to know as to what actually used to be the practice in this respect in the year 1958. He told me that from old times the practice has always been that the Copying Branch does give tentative date to an applicant on which copy is expected to be ready and if on that date it is not ready, he is again given some further suitable date. This will show that the deposition of Munshi Muhammad Iqbal that no date for preparation of the copy was given to the plaintiff, seems to to quite correct and if by not following its own practice the Copying Branch delayed the delivery of the copy or did not give any date, the appellant could not and ought not to have been blamed for the same. In Gul Muhammad v. Allah Ditta (P L D 1960 Lah. 443) though the case was decided on the new rule inserted in 1959 whereby date of delivery has been made as the relevant date, the learned Judges expressed great doubts in the method of not intimating any date to an applicant. The following passages in the judgment of Kayani, J. are instructive :‑
"The time "requisite" for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all. See Fouda Uraon v. Ganpat Ram A I R 1920 Pat. 278. In Sheogobind v. Ablakhi I L R 12 All. 105 Mahmood, J. included within the "time requisite" even the days which the applicant allowed to pass between the date when the estimate of costs was delivered to him and the date on which stamp was put in by him eight days on the ground that "the word requisite' makes it possible to require its meaning to be such that he should not lose the right of appeal either by reason of neglect of the officials who issue copies or those who are required to give notice when such copies are ready". Unless on facts we could hold that the applicant required eight days for this purpose, we may not be prepared to go so far with Mahmood, J., but we respectfully agree that whatever period is necessary for the doing of a thing of that kind will be included in the time requisite for obtaining a copy.
In certain other cases, like Madan Singh v. Puran Singh A I R 1926 Lah. 84 it has been held that where the delay in producing a copy of the decree was due to the failure of the office to inform the applicant of the date when the copy would be ready, limitation should be extended under section 5, Limitation Act. In view of our interpretation of section 12, we find it unnecessary to resort to this provision."
Earlier on the same page, they observed with reference to the justification of the amendment which had been made in the rule as follows :
"In other words, it is implied that the copying agency will inform the applicant to take delivery of the copy on a certain date, and this amendment is evidence of a general feeling in this Court that it will be unreasonable to expect an applicant to call for a copy morning and evening every day so as to ascertain whether it is ready. It may so happen that although at three o'clock in the afternoon a copy is not ready, it is completed some time after four o'clock, but if the applicant had called at three o'clock he would have been sent away without the copy, and on the following morning his appeal might be time‑barred."
The passages reproduced above and the authorities quoted therein (which I have no hesitation in following) will clearly show that when no intimation is given by the Copying Agency of the date when the copy might be ready, it is the date of the delivery up to which the time can be considered as time requisite in obtaining the said copy. Applying this principle to the facts and the circumstances of the present case, it must be held that the plaintiff was entitled to full allowance of time uptil the date when the copy was delivered to him, namely, 29th of April 1958 and the learned District Judge was not justified in disallowing such time. Reversing his judgment on this point, I, therefore, hold that the appeal before the learned District Judge was quite within time and the delay, if any, was liable to be condoned which I hereby do.
9. The upshot of the above discussion is that the judgment of the learned District Judge is set aside and the case is remanded to him for fresh decision on merits in accordance with law.
A. E./K. B. A. Appeal accepted.
Case remanded.
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