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Regular Second Appeal No. 321 of 1956, decided on 6th April 1960.

O. IV, r. I read with S. 24‑"Court" means presiding officer of Court competent to receive plaints‑Expression "officer" means officer of Court ordinarily competent to receive plaints.

The expression "Court" in Order IV, rule 1 of the Code of Civil Procedure, 1908 means the presiding officer of the Court com petent to receive plaints. The power of receiving plaints, however, may be conferred upon any other officer by the Court i.e. the Judge competent to receive them. The expression "officer" mentioned in Order IV, rule 1 of the Code of Civil Procedure means an officer of the Court which is ordinarily competent to receive the plaints. The term "officer" has not been defined either in the Code of Civil Procedure or in the General Clauses Act, but this absence of definition is immaterial because the expression is in common use. If the term "officer" were not intended to mean an officer of the Court to which the plaints are ordinarily to be presented, startling results could follow in some cases because a Judge would, for example, be competent to direct that the plaints which should ordinarily be presented to him should be presented to the highest military officer or the highest officer of the Railway Department posted at the station at which his Court is situated, and it is obvious that this could not have been the intention of the legislature which passed the Code of Civil Procedure.

The officer to whom powers are delegated must be an officer of the Court which delegates the powers to receive plaints.

The word "Court" occurring in section 34, C. P. C. would, in this context, mean either the Court of the Additional District Judge or the Court of any Civil Judge, but it is clear that the power to receive plaints cannot be conferred on an officer who is not ordinarily competent to receive them because if that is done, jurisdiction is being conferred on an officer which he does not ordinarily possess.

Ss. 24 & 25‑Court of District Judge means District Court or principal Civil Court of original jurisdiction in District‑District Judge has jurisdic tion in original civil suits without limit as regards value.

Section 24 of the Punjab Courts Act, 1918, is to the effect that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the District, while section 25 says that except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards value.

S 4‑‑"Court" means place where Court is held.

The expression "Court" has not been defined either in the Limitation Act or the General Clauses Act and this can be said of almost all Acts in force in Pakistan. The expression, however, means according to the context in each case either the presiding officer or the whole Court including the presiding officer of the Court or the place where cases are heard. It is clear that in section 4 of the Limitation Act the expression "Court" means the place where the Court is held and does not refer to the presiding officer because it is only a place that can be closed. If for some reason the court‑room is closed so that nobody can enter it, it is obvious that the Court is closed. But if the court‑room is open, it does not necessarily follow that the Court is not closed. For example, the court‑room may be open on a day, but it may not be possible to transact any business therein on that day, just as on a holiday, and if that be so, the Court will have to be deemed to be closed on that day for the purposes of section 4 of the Limitation Act.

S. 4‑Presiding officer of Court proceeding on leave‑Court deemed to be closed during such leave.

O. IV, r. 1‑Plaint presented to person who had no authority to receive it‑No presentation‑Date of presentation deemed to be date when plaint placed before Court.

Said Akbar for Appellant.

Ghias Muhammad for Respondents.

Date of hearing : 6th April 1960.

On the 15th of August 1953, Murad Ali sold a piece of land, measuring about 12 kanals, to Muhammad Ismail and Yousaf Ali, and Nazar Muhammad, who claimed to have a right of pre‑emption superior to that possessed by the vendees, brought a suit for possession of the land sold in exercise of that right. The last date for filing the suit, accord ing to the law of limitation, was the 14th of August 1954, but as 14th August 1954, was a public holiday, being the Pakistan Day, the suit was not instituted on that date, not was it instituted on the 15th of August 1954 which happened to be a Sunday. On the 16th of August‑1954, Nazar Muhammad com pleted his plaint but, according to him, it was not received by the officials of the Court of the Senior Civil Judge, Gujranwala, on that date and the Senior Civil Judge himself was on leave for a fortnight. It is established beyond all doubt that the plaint was presented to the Duty Magistrate at Gujranwala on the 16th of August 1954, but .vas not received by that officer as it was presented, according to him, after the Court‑hours. On the 17th of August 1954, the plaintiff took the plaint again to the Duty Magistrate who endorsed thereon that it had been presented to him and sent it to the office of the Court of the Senior Civil Judge, Gujranwala. The presiding officer of the Court of the Senior Civil Judge, Gujranwala, returned from leave on the 28th of August 1954 and that very day passed an order entrusting the trial of the suit of Nazar Muhammad to Mr. Bashir Ahmad who was at that time a Civil Judge of the Second Class at Gujranwala.

2. Before the learned trial Judge the defendants raised objections that the suit was barred by time whereupon an application under section 5 of the Limitation Act was presented by Nazar Muhammad plaintiff who asserted in the application that he had presented the plaint to the Duty Magistrate on the 16th of August 1954, who had refused to keep it with him on the ground that it should have been brought to him by an official of the Court of the Senior Civil Judge. The learned trial Judge framed two issues which were as follows :‑

(1) Whether the application lies under section 5 of the Limitation Act. If so, what is its effect

(2) Whether the plaintiff filed his suit on 16th August 1954, and is it within time

Both these issues were decided against the plaintiff on the 9th of March 1955. The suit was, however, tried with a view to deciding two further issues which were :‑

(1) Whether the suit of the plaintiff is within time

(2) Whether the plaintiff is estopped from bringing this suit

By his order dated the 31st of May 1955, the learned trial Judge decided the first of these two issues against the plaintiff and the second one against the defendants, and dismissed the suit as barred by limitation. Nazar Muhammad plaintiff presented an appeal in the Court of the District Judge, Gujranwala, which was dismissed on the 2nd of April 1956, by Chaudhri Muhammad Din, the then District Judge of Gujranwala, and against that decision the present second appeal has been presented by the plaintiff.

3. The learned counsel for the appellant contended that the plaint was presented to the Duty Magistrate, Gujranwala, on the 16th of August 1954, within court‑hours but he refused to keep it with him for the reason that it had not been brought by an official of the Court of the Senior Civil Judge and con sequently the suit which was instituted within the period of limitation prescribed by law could not have been thrown out on the ground that it was barred by time. In the alternative be contended that the authorization of the Duty Magistrate to receive plaints which should have been presented to the Senior Civil Judge, Gujranwala, was not allowed by law and was in any case defective, and, consequently, even if it be held that the plaintiff had not presented his plaint to the Duty Magistrate, Gujranwala, within court‑hours, on the 16th of August 1954, the suit could not be dismissed as barred by time. Another argument addressed by the learned counsel for the appellant was that the Court of Senior Civil Judge, who could receive the plaint, should have been deemed to be closed on the 16th of August 1954, and should have been considered to have re‑opened on the 28th of August 1954, when the Senior Civil Judge returned from leave and, therefore, also the suit was within time and the orders of the Courts below, that it was barred by limitation, were incorrect and should be reversed.

4. I do not consider it necessary to determine whether the evidence on the record is sufficient to prove the assertion of the plaintiff‑appellant that he had presented the plaint to the Duty Magistrate, Gujranwala, within the Court‑hours on the 16th of August 1954, because I am of the view that the appeal must succeed for other reasons.

5. With regard to the authorization of the Duty Magistrate, Gujranwala, to receive plaints on behalf of the Senior Civil Judge, Gujranwala, the facts that emerge from the material on the record may be briefly stated. The Senior Civil Judge, Gujranwala, went on leave till the 28th of August 1954, but before going away wrote to the District Judge, Gujranwala, to appoint someone to receive plaints in his absence. 7 he Civil Judge posted at Gujranwala was on tour and the District Judge wrote to the Additional District Magistrate, Gujranwala, to authorize one of the Magistrates to receive plaints during the absence of the Senior Civil Judge because the District Judge, himself was also going away on leave: The Additional District Magistrate, Gujranwala, authorised the Duty Magistrate to receive plaints in civil suits till the return of the Senior Civil Judge, Gujranwala, from leave. It appears to me that this appointment of the Duty Magistrate, Gujranwala, to receive plaints was neither proper nor legal. The law that applies to presentation of plaints is contained in sub‑rule (1) of Order IV, rule 1 of the Code of Civil Procedure which reads as under :‑

"(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf".

According to this provision a plaint is ordinarily to be presented to the Court and I am clear in my mind that the expression Court" in Order IV, rule I of the Code of Civil Procedure means e presiding officer of the Court competent to receive plaints. The power of receiving plaints, however, may be conferred' upon any other officer by the Court i.e. the Judge competent to receive them. The question arises whether officer to whom these powers are delegated has to be an officer of the Court in which the plaints should ordinarily be presented or any officer whom the presiding officer may choose to name. I have no hesitation in holding that the expression "officer" mentioned in Order IV, rule 1 of the Code of Civil Proce dure means an officer of the Court which is ordinarily com petent to receive the plaints. The term "officer" has not been defined either in the Code of Civil Procedure or in the General Clauses Act, but this absence of definition is immaterial because the expression is in common use. If the term "officer" were not intended to mean an officer of the Court to which the plaints are ordinarily to be presented, startling results could follow in some cases because a Judge would, for example, be competent to direct that the plaints which should ordinarily be presented to him should be presented to the highest military officer or the highest officer of the Railway Department posted at the station at which his Court is situated, and it is obvious that this could not have been the intention of the legislature which passed the Code of Civil Procedure.

6. The contention of the learned counsel for the appellant that in any case the delegation of the power to, the Duty Magis trate, Gujranwala, to receive plaints was not properly made may now be taken up. It is patent from the material on the record that when the Senior Subordinate Judge, Gujranwala, went on leave from the 14th to the 28th of August 1954, he informed the District Judge, Gujranwala, that he was going on leave and the District Judge asked the Additional District Magistrate, Gujranwala, to appoint a Magistrate to receive plaints which may be filed in the Court of the Senior Civil Judge, Gujranwala, in the absence of the presiding officer. The argument of the learned counsel for the appellant was that because the Senior Civil Judge himself had not delegated the powers to the Duty Magistrate the delegation, even assuming that such delegation could be in favour of an officer not working in the Court in which the plaint was to be presented, was wrong in law because, according to him, only the Senior Civil Judge could have delegated to any one his own powers of receiving plaints. The learned counsel for the appellant did not in this connection advert to some provisions of tote Punjab Courts Act which are applicable. Section 24 of the Punjab Courts Act, 1918, is to the effect that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the District, while section 25 says that except as otherwise pro vided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards the value. Section 26 of that Act says that the jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Subordinate Judge, shall be determined by the High Court either by including him in a class or otherwise as it thinks fit. By Notification No. 4, dated the 3rd of January 1923, issued by the High Court of Judicature at Lahore, under section 26 of the Punjab Courts Act, four classes of Civil Judges who were then called Subordi nate Judges were fixed, Subordinate Judge of the first class being endowed with jurisdiction to try suits without limit as to value. Section 34 of the Punjab Courts Act authorized the District Judge by a written order to direct that any civil business cognizable by his Court and the Courts under his control, that is, the Courts of all the Civil Judges in his division, shall be distributed among. such Courts in such manner as he thinks fit and this order could be issued notwithstanding anything contained in the Code of Civil Procedure. Acting under section 34 of the Punjab Courts Act every District Judge in what used to be the Punjab Province authorized the institution of the plaints in Courts of Civil Judges exercising the highest powers of a Civil Judge. According to the provisions in the Punjab Courts Act the power to receive plaints originally vested in the District Judge, Gujranwala, and he had delegated it to the Senior Civil Judge, Gujranwala. The Senior Civil Judge, Gujranwala, went away on leave and informed the District Judge that he was going away. Thus, the powers vested in the Senior Subordinate Judge were in abeyance for the period that he was on leave, and it was open to the District Judge to direct that the power to receive plaints shall be exercised by someone else because this power being a civil business cognizable by the Court of the District Judge, he was authorized by the provisions of section 34 of the Punjab Courts Act to issue a direction about it. Here sub‑rule (1) of Order IV, rule 1 of the Code of Civil Procedure comes into play and the officer to whom powers are delegate must be an officer of the Court which delegates the powers to receive plaints. It appears to me that in a way the Proviso to section 34 of the Punjab Courts Act too stood in the way of the power to receive plaints being delegated to a Magistrate. The Proviso is to the effect that no direction issued by the District Judge shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction. It is true that the word "Court" occurring in section 34 would, in this context, mean either the Court of the Additional District Judge or the Court of any Civil Judge, but it is clear that the power to receive plaints cannot be conferred on an officer who E is not ordinarily competent to receive them because if that is done, jurisdiction is being conferred on an officer which he does not ordinarily possess. I am of the view that the delegation of the power to receive plaints to the Duty Magistrate, Gujranwala, in addition to suffering from the defect that it was not delegated to an officer of the Court of the District Judge suffers from another infirmity. I have indicated already that the power to choose the Magistrate who would receive plaints in the exercise of the powers of the District Judge, Gujranwala, and the Senior Civil Judge, Gujranwala, was given to the Additional District Magistrate. This, in my view, was against law because the power which vested in the District Judge under the law could be exercised by him and in the absence of a provision to that effect and no provision to that effect exists it was not open to the District Judge to confer the power to receive plaints conferred by law on him on the Additional District Magistrate or anyone else. I would, therefore, held that the Duty Magistrate, Gujranwala, had not been properly authorized to receive plaints.

7. I will now take up the contention of the learned counsel for the appellant that the Court of the Senior Civil Judge as well as that of the District Judge should be deemed to have been closed on the 16th of August 1954, and, therefore, section 4 of the Limitation Act was applicable. Section 4 of the Limitation Act reads as follows:‑--

"Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re‑opens."

Now, the expression "Court" has not been defined either in the Limitation Act or the General Clauses Act and this can be said of almost all Acts in force in Pakistan. The expression, however, means according to the context in each case either the presiding officer or the whole Court including the presiding officer of the Court or the place where cases are heard. It Is clear that in section 4 of the Limitation Act the expression "Court" means the place where the Court is held and does not refer to the presiding officer because it is only a place that can be closed. If for some reason the court‑room is closed so that ‑nobody can enter it, it is obvious that the Court is closed. But if the court‑room is open, it does not necessarily follow that the Court is not closed. For example, the court‑room may be open on a day, but it may not be possible to transact any business therein on that day, just as on a holiday, and if that be so, the Court will have to be deemed to be closed on that day for the purposes of section 4 of the Limitation Act. Applying these tests to .the facts of the present case one cannot but arrive at the conclusion that the Court of the Senior Civil Judge, Gujranwala was closed on the 16th of August 1954, so far as the presentation of plaints in that Court was concerned. This is so because the presiding officer of the Court was on leave and the plaint could not be presented to him. On the 16th of August 1954, officials of the Court of the Senior Civil Judge, Gujranwala, were probably all present in the Court‑room, or in a room attached to it, but as none of them had been authorised by the Senior Civil Judge, Gujranwala, to receive plaints on his behalf, their presence was entirely immaterial. What I have said above about the Court of the Senior Civil Judge, Gujranwala, applies with equal force to the Court of the District Judge, Gujranwala It follows, therefore, that section 4 of the Limitation Act comes to the aid of the plaintiff and because the Senior Civil Judge, Gujranwala, returned from leave on the 28th of August 1954, I have no hesitation in holding that his Court remained closed from the 14th of August 1954, till the 27th of August 1954 and a plaint, which should have been presented on the 14th of August 1954, must be held to have been presented within time if it was presented on the 28th of August 1954. That the plaint under consideration was placed before the Senior Civil Judge, Gujranwala, on the 28th of August 1954, is clear from the fact that he passed an order thereon on that day and even if there was any defect in the presentation of the plaint on account of H the fact that it had been presented to the Duty Magistrate, Gujranwala, who could not, in law, receive it‑a defect for which the plaintiff was in no way responsible‑it was cured by reason of the fact that the plaint was placed before the Senior Civil Judge, Gujranwala, on the 28th of August 1954.

8. In view of what I have said above, I hold that the suit was instituted within the time prescribed by law and could not have been dismissed by the Courts below as barred by time. Consequently, I accept the appeal and send the case back to the District Judge, Gujranwala, with the direction that he will entrust its trial to a Civil Judge of competent jurisdiction, who will dispose of the suit at a very early date. There will be no order as to costs incurred by the parties so far.

K.M.A. Appeal accepted.

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