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Regular Second Appeal No. 318 of 1966, heard on 5th May, 1984.
‑‑S. 15‑‑Limitation Act (IX of 1908), Ss. 5 & 12‑‑Civil Procedure Code (V of 1908), O. XLII, R. 2 [as amended by Lahore High Court]‑-- Pre‑emption suit‑‑Appeal‑‑Limitation‑‑Appeal filed without certified copy of judgment of Trial Court and without prayer for dispensation of the same‑‑On return of appeal by office appellant refiling it after limitation period had expired alongwith the certified copies of the judgment and decree but without application for condonation of delay‑‑Appeal having been returned once again for such deficiency the appellant refiled it after considerable delay with application for condonation of delay on ground that time was spent on obtaining copy of Trial Court's judgment‑‑Appellant having applied for copy of judgment on last day of limitation and no sufficient cause having been shown, appeal held, was not properly instituted and was dismissed.
Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan PLD 1968 Lah1205 ref.
‑‑‑Ss. 5 & 12‑‑Limitation‑‑Time consumed in obtaining copy of judgment, held, could not be claimed as of right under S. 12, Limitating Act but might be granted by way of sufficient cause under S. 5 of Limitation Act.
Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan PLL 1968 Lah. 1205 rel.
Ch. Inayat Ullah for Appellant.
Mian Saqib Nisar for Respondents.
Date of hearing: 5th May, 1984.
This second appeal, by the pre‑emptor against the appellate decree, dated 27‑10‑1965 passed by the learned Additional District Judge, Lahore at Sheikhupura to dismiss his appeal by confirming the trial Court's decree, dated 26‑1‑1965 dismissing his suit regarding one Kanal 9 Marlas of agricultural land situated in village Buraj Attari, tehsil Ferozewala; was instituted on 28‑2‑1966, accompanied by the copies of the judgment and decree of the lower appellate Court, which had been applied for on 26‑1‑1966. A copy of the judgment of the trial Court was, however, not filed therewith as per the requirement of Order XLII, Rule 2 of the C.P. C. as amended by this Court's Notifications No.4685.G., dated 17‑10‑1919 and 138.6., dated 19‑3‑1926 wherein dispensation of this copy by the Court is also envisaged but no prayer even for dispensation was made. Office raised the objection and returned the appeal for needful being done. It was refiled on 22‑3‑1966 with the copy of the trial Court's judgment but no application for condonation of delay on that count was filed and the appeal had to be returned again but was refiled on 13‑4‑1966 and an application under section 5 of the Limitation Act bearing Civil Miscellaneous No. 1/C of 1966 was filed on 19‑4‑1966 to claim condonation of period between 26‑2‑1966 and 28‑2‑1966 on the ground that the required copies were handed over to the petitioner in Sheikhupura at 4‑00 p.m. on 26‑2‑1966 and the 27th being a Sunday the appeal was filed on the 28th. This explanation, though not appearing to be wrong was necessitated by the fact that the appellant had applied for grant of certified copies of the appellate judgment and decree on the last (90th) day of limitation and even upon being granted the allowance of time requisite for copies under section 12 of the Limitation Act he was supposed to have filed his appeal on 26‑2‑1966. This explanation does not, however, bring this appeal as within time because the appeal in a complete form was filed only on 22‑3‑1966 when copy of the trial Court's judgment was' also added to it. The time consumed in obtaining such a copy cannot' be claimed as of right under section 12 of the Limitation Act but may be granted by way of a sufficient cause under section 5 of the Limitation Act as held in Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan P L D 1968 Lah. 1205. Since there is no prayer made for condonation of delay on that count, therefore, this appeal (taken to have been properly instituted on 22‑3‑1966) is barred by 24 days and is accordingly dismissed. No order as to costs.
M.Y.H./699/L Appeal dismissed
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