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Second Appeal No. 399 of 1979, decided on 4th April, 1982.

‑‑‑ S. 12 and Maxim : Actus curiae nominem gravabit (act of Court shall prejudice no man)‑Only endorsement of Stamps not supplied' made on application for‑grant of copy but applicant not called upon to supply stamp‑Applicant supplying stamps and copy supplied on same day‑Requirement of supply of stamps being not communicated to applicant earlier and no pasting being made on notice board after preparation of copy, exclusion of time between date of application and date of preparation of copy, held, deserved by applicant and appeal within time‑‑Party could not be allowed to suffer on account of office of Court; on principle that parties should not suffer due to any act or omission of Court or its officers ‑[Maxim].

West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi P L D 1973 S C 222 ref.

Shamdas B. Chhangani for Appellants.

Ihamat Jethanand for Respondent.

Date of hearing 4th April, 1982.

The facts giving rise to this second appeal as stated by the learned Counsel for the appellant are as follows One Jamaluddin, being the landlord of shop premises bearing No. D/840, situated opposite to Fort Gate, Hyderabad, filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959, against Muhammad Omar and Muhammad Siddique for their eviction from the shop. During the pendency of‑the application Jamaluddin sold the premises to Dr. Amina Ashraf who applied for being substituted as the applicant in place of Jamaluddin but her application was rejected on 22^nd August, 1969 .

Against the order Dr. Amina Ashraf preferred an appeal, being No. 285 of 1969, which was allowed by the District Judge, Hyderabad by the order dated 5th May, 1970. Against the order Muhammad Omar and Muhammad Siddique filed a second appeal, being No. 318 of 1970, in this Court which was allowed and the case was remanded by the order dated 3rd September, 1976. One of the relevant contention of the appellant and the contention of the respon dent and operative part of the order of remand are contained in para graph 5 of the order which may be reproduced for the sake of convenience,

"that the appeal filed by the landlady against the order made by the Rent Controller dated 22nd August, 1969 rejecting her application for substitution was barred by time. More particularly the contention was that an application for grant of copy was not made until 13th September, 1969. Cost was paid on the same day, copy made ready on 20th October, 1969, stamp supplied on 5th November, 1969 and ready delivered on the same day. Unfortunately there are over writings as to date and without further inquiry it is not possible to place reliance on the certified copy of the order of the Rent Con troller obtained by the landlady. Furthermore, it is Mr. Fazeel's case that the landlady had no notice that copy was ready for delivery.

Unfortunately the learned First Appellate Court has not adverted to the tenant's plea of limitation. In the circumstances 1 am left with no other alternative but to remand the case back to the First Appel late Court or its decision on this limited question".

On remand the learned District Judge, Hyderabad by the order dated 13th September, 1979 has found that the appeal filed by Dr. Amina Ashraf was not time‑barred. Aggrieved by this Order. Muhammad Omar and Muhammad Siddiq have again filed this appeal I may here reproduce paragraph 5 of the order which contains the res pective contentions and arguments of the learned counsel for the parties, and reasons of the learned District Judge, for the same contentions and argu ments have been raised before me

"....He further contended that by virtue of sub‑rule (2) of rule 324 of the Sind Civil Court Rules, the copy was not to be prepared unless the requisite stamps were supplied within 7 days from the date of the communication by the Record Keeper or the Head Copyist. The contention of the learned counsel for the respondents is that the time lapsed between 13th September, 1969 and 5th November, 1969 is not to be excluded but is to be counted towards limitation and in ''' that view of the matter the appeal was filed beyond the time, such contentions of the learned Advocate for the respondents ' have no legal force. Rule 323 of Sind Civil Courts Rules prescribes that as soon as the order for issuance of copy is made, Record Keeper or the Head Copyist as the case may be, shall ascertain the amount of copying etc. and enter them on the application and com municate the same to the applicant. Rule 324 (3) of the said Rules provides that in case of failure by the applicant to make the estimat ed deposit or payment within 7 days of the communication the appli cation for copy shall be rejected. In the instant case the amount of the stamps to be required to be paid by the applicant was not entered till 3rd November, 1969 and the application for copy was also not rejected,

It was only on 3rd November, 1969 that on endorsement was made on the application to the following effect "stamps not supplied".

This endorsement reasonably tends to suggest that the requirement of supply of stamp was not communicated to the applicant earlier, otherwise on non‑supply of the stamps the application for copy should have been rejected. Additionally, it is evidenced from the endorse ment on the copy of the impugned order, the copy was prepared on 20th October, 1969, but there is no material to show that after 20^th October, 1969 when the copy was actually prepared, which of course should have been prepared after supply of the stamps, any posting on the notice board was made, as required by rule 331 of the Sind Civil Courts Rules. In absence of such posting also it ‑cannot be presumed that the appellant had the knowledge of the preparation of copy. It appears that on communication of the aforesaid endorse ment "stamps not supplied" the appellant supplied the stamps and the copy was delivered to him on the same day and the appeal was filed on 8th November, 1969 on exclusion of time intervening between 13th September, 1969 and 5th November, 1969 the appeal would be well in time."

In my view of the order passed by the learned District Judge, Hyderabad is correct for, if the respondent had not supplied the court‑fee stamps for the copy alongwith the application for copy, the application should have been rejected as provided in rule 324 of the Sind Civil Court Rules. Since this was not done and the copy was prepared then in accordance with rule 331 of the Sind Civil Court Rules the respondent should have been given notice by pasting the list on the notice board. Bu this was not done. However, within two days of the making of a note o the application Dr. Amina Ashraf supplied the stamps. In these circum stances, if time requisite in obtaining the copies is excluded it cannot be said that the appeal was barred by time. Even otherwise it is well‑settle principle that the parties should not suffer due to any act or omission ' of the court or its officers, if the application had been rejected on the ground of non‑supply of the stamps as required by the Rules still there would have been time and the respondent could possibly have filed another application alongwith the requisite stamps within the period of limitation. . The res pondent could not be allowed to suffer on account of the omission of the office of the Court.

The learned District Judge, Hyderabad, has placed reliance on West Pakistan Industrial Development Corporation Karachi v. Aziz Qureshi (P L D 1973 S C 222). In this case it was observed by the Honourable Judges of the Supreme Court at page 225 of the report as follows

"It has been submitted before us that the 3 days' delay that occurred in filing the petition for special leave was due' to the fact that the office of the High Court did not notify that the copy was ready for delivery as required under the Sind Chief Court Rules, and, therefore, limitation should be computed from the date of obtaining delivery of the copy. This view finds support from the decision of the High Court in the case of Gul Muhammad v. Allah Ditta P L D 1969 Lah. 443. In the case under report it has been held that the time "requisite" for obtaining copies which can be excluded under sec tion 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 careless ness 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. In any event, in my opinion, delay has been satisfactorily explained and I would, accordingly condone the delay."

I dm of the view that reliance was rightly placed on the above‑cited case. I therefore, dismiss this appeal with costs.

K. M. A. Appeal dismissed.

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