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Civil Appeal in Civil Petitions Nos. 770 to 781 of 1979, decided on 8th September, 1985.

(Against the judgment and order, dated 12‑6‑1979 of the Lahore High Court, Lahore, in Regular Second Appeal Nos. 901 to 912 of 1976).

‑‑‑Ss. 5 & 12‑‑Civil Procedure Code (V of 1908), S. 100, O. XLII, r.2‑‑Time‑barred Second Appeal‑‑Con donation of delay‑‑Time spent in obtaining copy of trial Court judgment‑‑Admissibility of‑‑Held: Such period was allowable and was to be excluded under S. 5 limitation Act as sufficient cause as it was a mandatory requirement the High Court Rules itself that second appeal must be filed with a copy of the trial Court judgment‑‑Petitions converted into appeals and accepted.

Muhammad Afzal Khan Lodhi v, 1968 Lah. 1205; West Pakistan Province v. Sh. Nazir Ahmad 1973 Lah. 403 and Kala v. Allah Dad P L D 1977 Lah. 376 rel.

Talib H. Rizvi, Advocate Supreme Court instructed by S. Ali Imam Naqvi, Advocate‑on‑Record for Petitioners.

Khalid Farooq Qureshi, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 8th September, 1985.

‑All these twelve petitions for leave to appeal raise a common question of law and are, therefore, being disposed of by this judgment.

2. The defendants are the petitioners. They seek leave to appeal against the judgment of the Lahore High Court, dated 12th June, 1979 whereby their Regular Second Appeals were dismissed as time‑barred, denying them the benefit under section 5 of the Limitation Act of the period spent in obtaining the copy of the judgment and decree of the trial Court required to be filed under Order XLII, rule 2, C P C. (introduced by Lahore High Court).

3. A suit was filed by the plaintiff‑respondents claiming proprietary interest and declaration thereof in agricultural land which was decreed by the trial Court. The first appeal filed by the petitioners failed before the District Judge on 23‑6‑1976. They applied for a copy the next day which was delivered to them on 30‑6‑1976. They thereafter applied on 12‑8‑1976 for a copy of the judgment of the trial Court which was delivered to them on 23‑10‑1976 and they filed the Regular Second Appeals on 5‑11‑1976. The office reported that the appeals were barred by 38 days as the time taken in obtaining the judgment of the trial Court was inadmissible. An application under section 5 of the Limitation Act was filed. The learned Judge in the High Court disallowed the time spent in obtaining it on the grounds indicated hereunder:‑

"The appellants were entitled to the computation of the period spent in obtaining the copies of the judgment and decree of the learned Additional District Judge only. Computing that period to the period of limitation of 90 days these appeals should have been filed on the 28th September, 1976, but they were filed as late as the 5th November, 1976. As stated above, there is no explanation why the appellants did not apply for obtaining the copies of the trial Court's judgment immediately after the 30th June, 1976, when they had been informed that they could obtain these copies from the trial Court. There is also no explanation why the appeals were filed 13 days late after these copies had been obtained. It was the duty of the appellants to explain each day's delay. There is no ground for condonation of the delay. The appeals are dismissed as barred by time with costs."

4. After hearing the learned counsel for the petitioners we converted these petitions into appeals.

5. It is true that in view of section 12 of the Limitation Act the time spent in obtaining the trial Court's judgment could not be excluded from the period of limitation available under the law. The appellant did not claim it under section 12. The requirement of rule 2, Order XLII as introduced by the Lahore High Court certainly was that a copy of the judgment of the trial Court must be filed and without it the appeal would not be properly constituted. Nevertheless, as such an amendment in the Civil Procedure Code or the orders and the rules framed there under could not have the effect of directly amending the requirement of Limitation Act such an effect could not be accomplished by the aforesaid addition to the rules by the High Court. Nevertheless, according to the well‑established practice of the High Court itself such a period was allowable and was to be excluded under section 5 of the Limitation Act as sufficient cause and if it is so done and the benefit' of it is allowed to the appellants their appeals would be within time would not be under a legal duty to further explain every day of time taken after 23‑10‑1976 before filing the second appeals on 5‑11‑1976.

In the case of Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan P L D 1968 Lab. 1205 after elaborate discussion such a period was held deduct-able. In the case of West Pakistan Province v. Sh. Nazir Ahmad P L D 1973 Lab. 403 it was held that:‑‑

"Appending the copy of the trial Court's judgment to the memorandum of appeal has been made obligatory by amendment of Order XLII, rule 1, C.P.C. and strictly speaking, the period taken in obtaining such a copy is not to be reckoned under section 12 of the Limitation Act, yet because filing of the said copy has been made necessary by the rules of this Court, it has always been considered that time spent for obtaining such a copy is to be reckoned by extension of the principles of section 5 of the Limitation Act."

7. In a subsequent case Kala v. Allah Dad P L D 1977 Lah. 376, the following law was laid down by the same Court:‑‑

"It is clear that the requirement that certified copy of the judgment of the trial Court should be filed alongwith the memorandum of appeal in the High Court is mandatory and in the absence of the same (unless its filing is dispensed with) the filing of the appeal would be defective and incompetent. The appellants had, therefore, sufficient ground for not filing the appeal till such time as the copy of the judgment of the trial Court was obtained Since the Legislature was not conscious of any such provision when section 2 of the Limitation Act was enacted, it could not provide for the same. It, therefore, furnishes a valid basis to condone the entire period spent in getting the copies of the judgment and decree of the trial Court. In Muhammad Afzal v. Islamic Republic of Pakistan P L D 1968 Lah. 1205 it was held that "if once the principle is accepted that obtaining of the copy of trial Court's judgment is a sufficient cause' 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 called for, if it is covered by giving allowance for the whole time involved in obtaining the copy."

8. In view of the law laid down by the Lahore High Court itself the time taken for obtaining the copy of the trial Court's judgment had to be allowed under section 5 of the Limitation Act as it was a mandatory requirement of the High Court rules itself that the second appeal must be filed with a copy of the trial Court's, judgment. If that period is allowed to the appellants their second appeals are within time and they are not required to further explain the delay taking place from 23‑10‑1976 to 5‑11‑1976. We accept all these appeals, set aside the dismissal of the Regular Second Appeals and remand the proceedings to the High Court for decision on merits as the delay has been condoned under section 5 of the Limitation Act. No order as to costs.

M. I. Appeals accepted.

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