Find a Lawyer

Miscellaneous (Waqf) Appeal No. 55 of 1982, decided on 19th March, 1987.

‑‑‑Ss. 12 & 29‑‑Appeal‑‑Limitation‑‑Exclusion of time‑‑Expression 'requisite' occurring in S. 12‑‑Interpretation‑‑Burden is upon appellants to show that no delay that occurred in filing appeal beyond prescribed period of limitation was due to their fault‑‑Contention that extra time taken by appellants for taking delivery of copy after same was made ready by office‑‑Such stand not taken in writing in memorandum of appeal nor such facts supported by affidavit‑‑Mere statement of counsel of appellant that the appellant had no knowledge about copy of judgment lying ready in office of District Judge, held, could not be regarded as sufficient for exclusion of such extra time‑‑Appeal dismissed as time‑barred‑‑West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S. 8.

State Life Insurance Corporation of Pakistan v. Mst. Zainab Khatun and others P L D 1987 SC (AJ&K) 5; Mst. Sabira Begum v. Khan and others 1984 C L C 927; Muhammad Ramzan v. Abdul Hadi and others 1983 C L C 2820; Gul Muhammad v. Allah Ditta P L D 1960 W.P. Lah. 443; Habib Bank Ltd.' v. Mussarat Ali Khan P L D 1987 Kar. 86 and I L R 6 Rang. 302 examined.

West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi P L D 1973 SC 222; Mst. Jamila Khatoon and another v. Mst. Tajunnisa and others P L D 1984 SC 208 and Qazi Sher Muhammad v. Punoon and others 1985 C L C 2611 distinguished.

Muhammad Ishaq Shams for Appellant.

Syed Hassan Mujtaba for Respondents Nos. 1 and 2.

Date of hearing: 24th February, 1987.

This appeal is directed against the judgment passed by the learned District Judge, Karachi, dated 15‑5‑1982 dismissing an application filed by the appellants under section 7 of the West Pakistan Waqf Properties Ordinance, 1961.

2. The appellants are a registered Society. They had constructed a mosque in Block No. 2, P.E.C.H. Society known as Al‑Falah Mosque. The Society had also constructed shops around the mosque. The appellants later acquired a plot adjacent to the mosque for the purpose of constructing a school. However, the appellants could not construct a school on the plot but they built a community hall on it for holding functions. On or about 9‑4‑1974 the first respondent while exercising powers under section 6 of the aforesaid Ordinance issued notification assuming administration control and maintenance of A1‑Falah Mosque and properties attached thereto. The disputed plot was also included in the properties attached to the mosque. The appellants thereafter, questioned the competence of the respondents to take over the community Hall before the learned District Judge.

3. The stand taken by the respondents in their written statement was that the disputed plot was acquired from the funds of the mosque and the same was also entered in its record. Consequently, it was contended that the plot being a Waqf Property, had been validly taken over by the respondents.

4. The learned District Judge, however, was not impressed by the case as put forth by the appellants and the application was dismissed by him vide his judgment, dated 15‑5‑1982. Aggrieved by such judgment the respondents have now filed this appeal.

5. At the very outset Mr. Syed Hassan Mujtaba, learned counsel for the respondents, has raised a technical objection that the appeal is time‑barred. It may be pointed out in this respect that according to the endorsement made by the office of the learned District Judge, the appellants applied for a copy of the judgment, dated 15‑5‑1982 on 18‑5‑1982. The costs were estimated by the office on 30‑5‑1982 which were deposited by the appellants the same day. Thereafter, the copy was made ready on 31‑5‑1982 but the same was taken delivery of by the appellants on 31‑7‑1982. Thereafter, the appellants filed appeal in this Court on 29‑8‑1982. It would consequently, appear that the appellants filed this appeal after a lapse of 105 days after judgment was announced in the case. Section 8 of the Waqf Properties Ordinance, 1961 provides for a period of sixty days for filing of an appeal before this Court from a decision of the District Court given under section 7 of the Ordinance. Mr. Muhammad Ishaq Shams, learned counsel for the appellants, has, however, vehemently argued that the appeal is not time‑barred as according to him, after the copy of the judgment was made ready on 31‑5‑1982 by the office of the learned District Judge, the appellants were not conveyed any information in this regard by the office and consequently, the appellants kept waiting till 31‑7‑1982, being under an impression that the copy was not ready.

6. There is no contest on the point that by virtue of section 29 of the Limitation Act, although section 12 of the Act is applicable and according to section 12 only such time could be excluded as was requisite for obtaining copy of the judgment. The expression 'requisite' has been interpreted by various judgments of the superior Courts as referring to such time taken for obtaining copy of the decree, judgment, order, etc. over which the appellant had no control. Consequently, according to the precedents, section 12 throws upon the appellants a burden to show that no delay that occurred in filing of appeal beyond the prescribed period of limitation was due to their fault. Therefore, if it is established that there was any dilatoriness on the part of the appellants they cannot claim any extension of time under section 12 of the Limitation Act. Both the counsel have relied upon a chain of authorities on the point and the same need to be, therefore, examined.

7. In State Life Insurance Corporation of Pakistan v. Mst. Zainab Khatun and others P L D 1987 SC (AJ&K) 5. It was held that the petitioner could not be penalized for mistake of copying agency and consequently the delay was condoned. It may however, be pointed out that the Court condoned the delay by invoking the provisions of section 5 of the Limitation Act. In Mst. Sabira Begum v. Khan and others 1984 C L C 927, the High Court of Lahore excluded the entire time, from filing of the application to the date of the delivery of the copy of the judgment to the appellant, while computing the period of limitation for filing of an appeal where no date for delivery of the copy had been given to the appellant. In Muhammad Ramzan v. Abdul Hadi and others 1983 C L C 2820 a Division Bench of the same Court once again held in no ambiguous terms that where the copying agency had failed to give information to the applicant regarding preparation and date of delivery of a copy, the time could be further extended under section 12 of the Limitation Act till the date of the delivery of the copy. Similar view had also been taken in another case decided earlier by the Lahore High Court and reported as Gul Muhammad v. Allah Ditta P L D 1960 W.P. Lah. 443. In West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi P L D 1973 SC 222 it was held by the Supreme Court that time requisite for obtaining copies of impugned order would be the time taken between the date of application and the date when copies are made ready but the same could be further extended if the delay is due to carelessness of the office in informing the applicant about the date on which copies are made ready for delivery. In Habib Bank Ltd. v. Mussarat Ali Khan P L D 1987 Kar. 86 a single Judge of this Court observed that the law of limitation must be construed strictly against the party who sets up the plea of limitation as the Limitation Act deprives a party of a valuable right and unless the provision in the Limitation Act was clearly and beyond doubt, a benevolent construction in favour of the party whose valuable right was being taken away must be given. However, in Mst. Jamila Khatoon and another v. Mst. Tajunnisa and others P L D 1984 SC 208 it was held by the honourable Supreme Court as follows:‑--

"The crucial words used in section 12(2) of the Limitation Act are 'time requisite' and the Court is required by law to exclude the time requisite for obtaining a copy of the order appealed from. This is a statutory provision of exclusion and is to be distinguished from the power conferred on a Court under section 5 of the Limitation Act to admit an appeal after the period of limitation prescribed, therefore, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. In this sense the operation of section 12 is distinct from that of section 5, which confers a discretionary power on the Court."

Reference was made in this judgment to I L R 6 Rang. 302, wherein it was held that the word 'requisite' meant 'properly required' which threw upon the pleader or counsel for the appellant the necessity of showing that no party of the delay beyond the prescribed period was due to this default. The Supreme Court judgment given in the case of Mst. Jamila Khatoon was also relied upon in another case decided by a Single Judge of this Court and reported as Qazi Sher Muhammad v. Punoon and others 1985 C L C 2611.

8. Turning once again to the facts of the case, there is no contest on the point that if 31‑5‑1982, on which the copy of the judgment was made ready, is regarded as the crucial date for the purpose of computation of the period of limitation then the appeal is clearly time‑barred. However, the case now needs to be examined in the light of the contention of Mr. Muhammad Ishaque Shams as pointed out above, viz., that the extra time taken by the appellants for taking delivery of the copy after it was made ready by the office of the learned District Judge on 31‑5‑1982 should also be excluded. As to the question whether the time taken between 31‑5‑‑1982 and 31‑7‑1982 should also be excluded under section 12 of the Limitation Act, no doubt, the three cases decided by the Lahore High Court and reported in 1984 C L C 927, 1983 C L C 2820 and P L D 1960 (W.P.) Lah. 443 respectively, support the contention raised on behalf of the appellants. It however, appears that the view taken by the Supreme Court in Mst. Jamila Khatoon's case which has been followed by the learned single Judge of this Court in Qazi Sher Muhammad v. Punoon and others is different as it has been observed in the judgment that time requisite for obtaining copy means only the interval between the date of application for supply of copy and the date when it is ready for delivery. It was further observed that even during this interval due diligence on the part of the litigant is required by law and no delay unless such as was caused by the circumstances over which he had no control and which could not by due diligence be avoided could form part of time requisite for obtaining the copy. Although in the other case decided by the Supreme Court and reported in P L D 1973 SC 222, to which I have just referred in this judgment, the time which was taken owing to the carelessness of the office in failing to give information as to the date on which the copies would be ready was condoned by the Supreme Court, but indulgence appears to have been shown to the party not by invoking the provisions of section 12 of the Limitation Act, but section 5 thereof. Since section 5 of the Limitation Act is not applicable to the present case, the case decided by the Supreme Court, in my opinion, is not fully attracted to the facts of the present case. However, even if the argument advanced by Mr. Muhammad Ishaq Shams is accepted, the same would still not help the appellants as I have found, that no such stand has been taken by the appellants in writing in their memorandum of appeal nor the facts have been supported by them by an affidavit. Without such facts being established the mere statement of Mr. Muhammad Ishaq Shams that the appellants had no knowledge about the copy of the judgment lying ready in the office of the learned District Judge cannot be regarded as sufficient.

The upshot of the entire discussion is that the objection taken by Mr. Syed Hassan Mujtaba is sustained and the appeal is dismissed as time‑barred. Under the circumstances it would be futile to go into the merits of the case. The parties are left to bear their own costs.

S.Q./A‑42/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.