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Civil Petition for Leave to Appeal No. 66/M. R. of 1978, decided on 15th January, 1980.

(On appeal from the judgment and decree of the High Court dated 3rd September 1978 in Civil Appeal No. 37 of 1977).

-- O. XLII, r. 1 [as applicable in Azad Jammu & Kashmir]-Memo randum of appeal---Memo of appeal to High Court-Copies of judg ments required- Memorandum of second appeal before High Court, held, must be accompanied by copies of judgment and decree appealed from and copy of judgment of Court of first instance unless appellate Court dispenses with,-[Appeal (civil)].

----S. 12-Limitation-Computation of period -Appeal- Exclusion of time spent in obtaining copies can be claimed only if application for copies of judgment made at time when right of appeal subsist ing-Time for appeal running out, subsequent application for copy, held, cannot entitle a person to present appeal and claim exclusion of time spent in obtaining copies.

-- S. 12(2) & (3)--Words "requisite" in subsection (2) & (3)-Mean something more than "required" while determining time requisite' Conduct of party to be considered and no period regarded as requisite which could have been saved if reasonable and proper steps to obtain such copy taken.-[Words and phrases].

Ch. Mohammad Sharif Tariq, Advocate for Petitioner.

Raja Mohammad Siddique Khan, Advocate for Respondents.

---The petitioner herein, who was plaintiff in the original suit, seeks leave to appeal against the judg ment and decree passed by the learned Chief Justice of the High Court on 3rd September, 1978, whereby his appeal, for its being filed beyond limitation, was dismissed with costs.

2. The facts in brief are that the petitioner-plaintiff, through a regular suit instituted in the Court of first instance, claimed a portion of a house on the basis of title. The suit was dismissed for its being filed beyond the period of limitation and an appeal, taken to the District Judge, also failed vide judgment and decree, passed on 31st of March, 1977. He then went in second appeal before the High Court which was also dis missed as being filed beyond the period of limitation.

3. The question to be answered in this petition is whether in the circumstances of the case, the petition for leave to appeal warrants acceptance. The limitation for a second appeal before the High Court is ninety days, which, in the instant case, expired on 29th of June, 1977, and the appeal was filed four days after the expiry of limitation on 3rd July, 1977. The contention of the petitioner, for condoning the delay, before the High Court, concisely, was that an application for copies was moved on 31st of March, 1977 ; the copies were delivered to him on 2nd of July, 1977 and this intervening period may be treated as an interval requisite for obtaining the copies The contention however, was ruled out of con sideration.

4. The petitioner now seeks leave to appeal, inter alia on the ground that the petitioner-plaintiff applied for the copies on the same day the judgment was delivered, i. e. 31st March, 1977, but the copies of the judgment and decree, passed by the learned District Judge, were prepared on 26th of June, 1977 i.e. after sixty seven days of applying for the copies and this Period aught to be treated as a period requisite for Obtain ing the copies because the copies which were to he prepared by the High Court office, could only be delivered after their preparation. If this period of sixty-seven days is condoned, the appeal, according to the learn ed counsel, which was filed only after four days of limitation, falls well within time.

5. We have given our anxious thought to the arguments advanced by the learned counsel for the petitioner and have come to the conclusion that even if the finding of the learned Chief Justice on the facts argued before him is erroneous (which in fact is not), the appeal, even otherwise on another ground, to be dealt with shortly, before the High Court was] incompetent.

6. Under Order XLII, rule 1,C.P.C., as applicable in Azad Kashmir, the memorandum of second appeal, before the High Court must be accompanied by three documents, namely, copies of the judgment and decree appealed from and unless the appellate Court dispenses with cop' of the judgment of the Court of first instance. The question which there fore falls for determination is whether the copy of the judgment of the Court of first instance accompanying the memorandum of appeal before the High Court, can be treated as valid copy for the purpose of appeal The reading of the copy shows that application for copy was made on 2nd July, 1977 and the copy was delivered to the petitioner on 3rd July, 1977. The time for filing the appeal before the High Court expired on 29th June, 1977, obviously before the application for copy of the judgment was made.

7. Under section 12 of the Limitation Act which deals with the computation of period of limitation, the exclusion can be claimed only if the application for copies is made at a time when the right of appeal subsists. Consequently if the time for appeal has run out a subsequent application for copy cannot entitle a person to present the appeal by exclusion from computation the time requisite in obtaining copies. It is correct that an applicant under section 12 may apply at any time even on the last date prescribed for filing the appeal; but it is necessary for party to make an application for copies of the decree and judgment, as the case may be, before the expiration of the time allowed to him by law to prefer an appeal. There seems to be lot of wisdom in it because by lapse of time an important right accrues to a party against whom a decree is made, and the decree becomes final. For that reason, after the expiry of the period of limitation such person cannot be said to be interested in the result of the appeal.

8. The words 'requisite' in subsections (2) and (3) of section 12 of the Limitation Act means something more than required'. In determin ing what is the time' 'requisite' in section 12, the conduct of a party must be considered and no period can be regarded as requisite which could have been saved if a person had taken reasonable and proper steps to obtain such a copy. Requisite' means properly required. The application for copy therefore, must be made before the period of appeal expires and exclusion under section 12 can be claimed only if the application for copy is made at a time when the right of appeal subsists. It is practically settled law that under subsections (2) and (3) of section 12, an appellant is entitled to get a reduction of the time requisite for obtaining copy of the decree as well as copy of the judgment if he hat applied for such copies within time.

9. From the above, it follows that when application for copy of the judgment is made after limitation, the right to appeal does not subsist and a person cannot be said to be entitled to avail of the provisions in section 12.

10. The appeal by the petitioner, before the High Court not accompanied by a copy of the judgment of the Sub-Judge, therefore, cannot be treated to be a valid appeal in the eye of law and there is no escape but to hold that the appeal filed before the High Court was hopelessly time barred. In view of the above it will be presumed that the appeal before the High Court was incompetent for its being filed beyond limitation. It may be stated here that this defect in the appeal before the High Court unfortunately, remained unnoticed and unattended by the learned Chief Justice and even by the learned counsel for the respondents.

11. The learned counsel for the petitioner; when confronted with this situation, made a request to send for the application submitted by his client for getting the copies before the District Judge which may show that copy of the judgment of learned Sub-Judge was also applied for in time on 31st March, 1977. The application was sent for, which shows that the petitioner-plaintiff applied for the copy of the judgment and decree of the District Judge only on 31st March, 1977 and not for the copy of the judgment of the learned Sub-Judge. The copy of the judgment of the learned Sub Judge, filed by the petitioner himself with the memorandum of second appeal before the High Court, shows that the application for the copy was submitted on 2nd July, 1977 and the copy was delivered to him on 3rd July, 1977. No doubt, the application for getting this copy is not traceable but as the copy is duly attested a presumption of truth is attached to it which is further strengthened by the fact that it has never been the case of the petitioner that he applied for the copy at a date prior to the date entered in the copy.

12. It may be remembered that leave to appeal cannot be granted as a matter of routine unless some serious question of law is made out. In the instant case, no legal question whatsoever is involved, the appeal before the High Court, under the provisions of section 12 of the Limitation Act read with Order XLII, rule 1, C. P. C. in the facts of the case was time barred and there is even no prima facie ground to hold otherwise.

In view of the above, no good case for acceptance of the petition is made out. The petition for leave to appeal, therefore, stands dismissed with costs.

M. Y. M. Petition dismissed.

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