EnglishFrenchPortugueseRussianUrdu

 

P L D 1974 Supreme Court 344

 

Present : Hamoodur Rahman, C. J., Waheeduddin Ahmad, Salahuddin Ahmed and Muhammad Gul, JJ

 

GHULAM HUSSAIN SHAH‑Appellant

 

versus

 

GHULAM MUHAMMAD‑Respondent

 

Civil Appeal No. 191 of 1969, decided on 10th September 1974.

 

(On appeal from the judgment and order of the High Court of West Pakistan, Bahawalpur Circuit, Baghdadul Jadid, dated the 20th November 1965, in Civil Miscellaneous No. 948/S‑1964/LHR, in R. F. A. No. 6 of 1962).

 

Ch. Khalilur Rahman, Advocate‑on‑Record for Appellant.

 

Sh. Ghias Muhammad, Senior Advocate Supreme Court instructed by. Mahboob Ahmad, Advocate‑on‑Record for Respondent.

 

Date of hearing : 31st May 1974.

 

JUDGMENT

 

WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the order of the High Court of West Pakistan, Bahawalpur Circuit, Baghdadul Jadid, in Civil Miscellaneous No. 948/S‑1964/LHR, dated the 20th November 1965. By this order, the High Court dismissed the applica tion for grant of certificate for leave to appeal on the ground that it was barred by limitation.

 

The dispute between the parties is in respect of 400 kanals of land in Chak No. 13, Fordwah, Tehsil Hasilpur. The appellant filed a suit for possession which was dismissed by the Senior Civil Judge, Bahawalpur in Suit No. 195 of 1960 by judgment dated the 30th January 1962. The appellant challenged this judgment before the High Court of West Pakistan, Bahawalpur Circuit, Baghdadul Jadid, in Regular First Appeal No. 6 of 1962. The appeal was dismissed by a Division Bench of the High Court, by judgment dated the 3rd April 1964. The appellant filed an application under sections 109 and 110, C. P. C., for grant of certificate to appeal to the Supreme Court. Before filing the application, the appellant made an appli cation for obtaining copy of the judgment and decree on the 9th April 1964. The copy of the judgment and decree was ready on the 15th July 1964. It may be mentioned that the application under sections 109 and 110, C. P. C., was moved on the 6th October 1964. The time for filing the application for leave to appeal under Article 179 of the Limitation Act is 90 days. If the time taken in obtaining the copy of the judgment and decree is excluded, the application was within limitation. It was pleaded before the High Court that section 12 of the Limitation Act applies to the case and the time taken in obtaining copy of the judgment and decree should be excluded. This plea was rejected and the petition was dismissed as being barred by time. In this connection, the High Court relied on Hari Ram v. Prem Nath and others (A I R 1935 Lah. 341), and held as under :‑

 

“Now, in the instant case, the rules under which the present application is governed are contained in Chapter 8‑A, Volume V of the High Court Rules and Orders, and there is no requirement in these rules that the copies of the judgment and decree should be filed along with the applic ation for leave to appeal. In fact, as already stated, no such copies have been filed with the present application. There is good reason for this rule as the application for leave to appeal is presented in the same Court which has delivered the judgment and which accordingly does not need elaborate explanation to be embodied in the application for leave to appeal. Further, the original records are also available to the Court, as is the case before us. Finally, it is also to be noted that at least since 1935 the practice of the Lahore High Court, of which the High Court of West Pakistan is a successor, has been that no such copies are filed along with such applications and the time requisite for obtaining such copies is not excluded. Taking all these circumstances into account, we have no hesitation in following the dictum in Hari Ram’s case, viz. that section 12 of the Limitation Act does not apply in the case of applications for leave to appeal to the Supreme Court.”

 

Mr. Khalilur Rahman, Advocate‑on‑Record for the appellant, has referred us to the case of Wali Muhammad and others v. Wali Muhammad and others (P L D 1974 S C 56) in which the order under appeal which is reported in P L D 1966 B J 11 and the case of Hari Ram v. Prem Nath and others was considered and was overruled. This Court, while considering the case under appeal, observed as under:‑

 

“I have also considered the reasoning in Ghulam Hussain Shah v. Ghulam Muhammad P L D 1966 B J 11. In that case, a Division Bench of the High Court of West Pakistan at Baghdadul Jadid, was influenced by the fact that under Chapter 8‑A of Volume V of the High Court Rules and Orders, there is no requirement that the copies of the judgment and decree should be filed along with the applications for leave to appeal and has based its decision on Hari Ram’s case and has not applied section 12 of the Limitation Act. Unfortunately, their attention was not drawn to the Full Bench case of the Lahore High Court in Punjab Co‑operative Bark Ltd., Lahore v. Official Liquidator, Puniab Cotton Press Co. Ltd. and others A I R 1941 Lah. 257. In my opinion, the principles laid down in this case and in the case of Jijibhoy N. Surty v. T. S. Chettyar A I R 1928 P C 103. applies to the facts of the present case. The mere fact that under the Rules and Orders of the High Court, there is no requirement 14 for filing the copies of the judgment and decree is no ground to ignore section 12 of the Limitation Act. As observed by their Lordships of the Privy Council “section 12 of the Limitation Act does not say why the time is to be excluded but simply enacts it as a positive direction.”

 

Their Lordships further observed in Jijibhoy’s case at page 105, as under :‑

 

“If indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents and argument might be offered that no time could be requisite. But this is not so. The decree may be complicated, and it may be opened to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment: no doubt, when the case does not come from up country, the practitioner ?will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge say, the Legislature may not wish him to hurry to make a decision till he has well considered it.

 

In the present case, the counsel who filed the petition for certificate of fitness was not appearing in R. S. A. and therefore, he was not aware of the contents of the judgment passed in the R. S. A. He has urged that as the judgment was required by him for drafting the grounds of appeal, the time taken in obtaining conies of the judgment should be excluded under section 12 of the Limitation Act. His contention appears to be well founded and in my opinion, the time taken in obtaining the copies of the judgment should be excluded in the present case.”

 

It was further observed as under :‑

 

“After careful consideration of the points raised in the present appeal, I am of the view that the law enunciated in the cases of Jijibhoy N. Surty v. T. S. Chettyar A I R 1928 P C 103, and Punjab Co operative Bank Ltd.. Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. A I R 1941 Lah. 257, is correct and the principles laid down‑in them should have been applied to the facts of the present case.”

 

It will thus be seen that the order under appeal was overruled and the decision of the Privy Council in the case of Jijibhoy N. Surty v. T. S. Chettyar and the Full Bench decision of the Lahore High Court in Punjab Co operative Bank Ltd., Lahore v. Official Liquidator, Punjab Cotton Press Co. Ltd., was found to be correct and apply on the facts of the present case.

 

Mr. Khalilur Rahman has further referred us to a decision of this Court in the case of Syed Falz All Shah v. Chief Administrator of Auqaf, Lahore (P L D 1974 S C 17), in which the view of the Full Bench of the Lahore High Court in the above second mentioned case and the view of the West Pakistan High Court, Karachi seat, in the case of Karachi Municipal Corporation v. Messrs Karimi & Co. (P L D 1967 Kar. 557) was approved.

 

It is thus quite clear that the view of the Lahore High Court in Hari Ram v. Prem Nath and the view of the West Pakistan High Court, Baghdadul Jadid, in the case of Ghulam Hussain v. Ghulam Muhammad, which is under appeal is not in accord with the view expressed by this Court in the above two decisions of this Court. The appeal, therefore, has to be accepted on the law already laid down by this Court in Wall Muhammad and others v. Wall Muhammad and others.

Mr. Ghias Muhammad, learned counsel for the respondent, was unable to satisfy us that the view taken by this Court in Wall Muhammad’s case, overruling the decision of the West Pakistan High Court in Ghulam Hussain’s case and of the Lahore High Court in Hari Ram’s case, was not correct.

 

He has, on the other hand, argued that the decision of this Court in the . above first mentioned case, treating the order as a judgment is not correct and that as section 12 (3) of the Limitation Act does not apply to the facts of the present case, section 12 (2) should not have been made applicable and should not be applied in the present case. In support of his contention he has relied on Ghulam Haider and another v. Abdul Ghana and others (P L D 1949 Lah. 570), Gulab Chand v. Peary Lal (A I R 1935 All. 99), Lakshaman and others v. Peryasaml (10 Mad. 373), Rajah Kotagiri Venkota Subbamma Rao v: Rajah Yellanki Venkatrama (27 I A197). The case of Ghulam Haider was considered in Wali Muhammad and others v. Wali Muhammad and others. The case of Gulab Chand is on the same lines and does not ‘,lay down a different principle. The Lahore High Court in Ghulam Harider’s case came to the following conclusion ;‑

 

“The language of subsection (2), as it now stands, when contrasted with subsection (3) clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal. We are, therefore, of opinion that the time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for an application for leave to appeal to his Majesty‑in‑, Council.”

 

As stated in the case of Wali Muhammad, in this case, the judgment of the Lahore High Court in Hari Ram v. Prem Nath was noticed in which it was held that section 12 of the Limitation Act did not apply to an applica tion for leave to appeal to his Majesty in Council, it being unnecessary for the applicant to file a copy of the decree or judgment with the application. However, this aspect of the question was left open and the learned Judges did not express any opinion on this point and made the following. observa tion:‑

 

“In this case, the learned Judges have gone a step further in holding that even subsection (2) of section 12 does not apply to an application for leave to appeal to His Majesty‑in‑Council. But the question is not before us as it is conceded that the applicant never applied for a copy of the decree sought to be appealed from. It is, therefore, unnecessary for us to express ‑any opinion on this aspect of the question.”

 

This Court considered the case of Ghulam Haider v. Abdul Ghana ands others and came to the conclusion that subsection (3) of section 12 of them Limitation Act is not attracted to the case under consideration. It applies! where a decree is appealed from or sought to be reviewed. It does not apply where an application for leave to appeal is made.

 

It will thus be noticed that the view expressed in Ghulam Haider’s case. was not departed from. This Court c e to the conclusion that section 12(2) of the Limitation Act applies to the facts of that case. Section 12 of the Limitation Act reads as under :‑

 

“Section 12.‑(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.

 

(2) in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pro nounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from, or sought to be reviewed shall be excluded.

 

(3) Where a decree is appealed from or sought to be reviewed the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

 

(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

 

It will be noticed that subsection (2) of section 12 applies for application for leave to appeal and under that subsection, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded.

 

Before dealing with the argument of the learned counsel for the appellant, it will be proper here to consider the contention of Mr. Khalilur Rahrnan that subsection‑ (3) of section 12 applies to the present case. ‑In support of his contention, the learned counsel has referred to a decision ‑of the Full Bench of the Allahabad High Court in Baldeo Pershad v. Dwarika Pershad (AIR 1957 All. 334). In that case, the decision of the Allahabad High Court in Gulab Chand v. Peary Lai was overruled. Mr. Khalilur Rahman contended that this Court should reconsider its decision about the application of subsection (3) of section 12 of the Limitation Act in the light of the above decision of the Full Bench of the Allahabad High Court. In that case, it was held as under :‑

 

” Prima facie there is no reason why the words “decree appealed from” should have a more restricted meaning in subsection (3) than they have in subsection (2) of section 12. These words should be held to include a decree against which a person seeks leave to appeal. Any doubt that the words `decree appealed from’ include a decree against which a person seeks leave to appeal is resolved by a reference to Arts. 179 and 170. Under these Articles in each case, time begins to run from the date of the decree appealed from”. It follows therefore that in computing the period of limitation for an application for leave to appeal to the Supreme Court, the time requisite for obtaining a copy of the judgment complained of must also be excluded.”

 

I have considered this decision and in my opinion, the reasoning given in the case of Ghulam Haider v. Abdul Ghani, is correct. I am also of the view that the language of subsection (2) when contrasted with sub section (3) clearly contemplates the exclusion from the scope of subsection (3)

 

 

of the case of an application for leave to appeal. I am, therefore, not inclined to change the view expressed by me in the case of Wall Muhammad and others v. Wali Muhammad and others.

 

Coming now to the facts of the present case, there is no doubt in my mind that subsection (2) of section 12 of the Limitation Act applies to ~ the present case. Subsection (2) of section 12 of the Limitation Act provides that in computing the period of Limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought the reviewed shall be excluded. Admittedly, in the present case, the appellant applied for obtaining a copy of the decree on the 9th April 1964, and it was supplied to him on the 15th July 1964. The application was made under sections 109 and 110, C. P. C. on the 6th October 1964. If the time taken in obtaining the copy of the decree is excluded, the application under sections 109 and 110, C. P. C., is within time. In my view, therefore, the High Court should have excluded the time taken in obtaining the copy” of the decree and should have held that the application under sections 109′ and 110, C. P. C., was within time. On this view, it is not at all necessary for me to consider whether the words “order” and ” judgment” are inter changeable and the word “order” referred to in subsection (2) of section 12 also includes judgment.

 

As arguments were advanced on this aspect of the case also, the argument of Mr. Ghias Muhammad that there is a distinction between order and judgment used in subsection (2) of section 12 of the Limitation Act, has received my anxious consideration. Mr. Ghias Muhammad has himself referred to a decision of the Privy Council in General Accident Fire & Life Assurance Corporation v. Janmahomed Abdul Karim (A I R 1941 P C 6). In that case, their Lordships of the Privy Council held that the Limitation Act should receive such, a construction as the language in its plain meaning imports. In this connection, their Lordships observed as under:‑

 

“The Limitation Act ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced even at the risk of hardship to a particular party.”

 

If the words “order” and `judgment’ are considered in this light, in my opinion, they carry the same meaning. According to Shorter Oxford Dictionary, in law, the word “order” means `a decision of a Court or Judge made or entered in writing.’ According to the same Dictionary, the meaning of the word “judgment” is `a judicial decision or order in Court.’ If these; meanings are taken into consideration, it is quite clear that the two words are inter‑changeable. In the past, this Court has considered the question whether the orders of the High Court in Letters Patent Appeals are judg ments or not and it has held that such orders are judgments. Reference in this connection may be made to Mumtaz Khan v. Chief Settlement & Rehabilitation Commissioner (P L D 1966 S C 276). It was held in that case that in the general connotation of the term, a “judgment” would merely mean a “judicial deter mination or a decision of a Court” and it could be interlocutory or final. In that case, the learned Single Judge of the High Court had actually passed an order which finally decided the rights of the parties in respect of an evacuee house. It was held to be a judgment in every term of the case. It was held that it was clearly rendered in a proceeding of a civil nature gas rights of property were adjudicated upon.

 

It will be further noticed that in another case, the report of the Election Tribunal was considered by this Court as “Judgment” in Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C (Pak.) 91). It was held as under:-

 

“The Election Petitions Tribunal has functioned as a Court and that its report is a judgment in every sense necessary for the exercise of this Court’s power to entertain appeals under Article 160 of the Constitution.”

 

On this view of the matter I am of the opinion that the word “judgment” covers order and the word `order’ also means in general sense a judgment. In these circumstances, the time taken for obtaining a copy of a judgment was rightly excluded in the case of Wali Muhammad and other v. Wali Muhammad and others.

 

In the result, I will hold that the application of the applicant under sections 109 and 110, C. P. C., was within limitation. I would, therefore, accept the appeal and send back the case to the High Court for decision on merits. In the circumstances of the present case, the parties are left to bear their own costs.

 

HAMOODUR RAHMAN, C. J.‑I agree.

 

SALAHUDDIN AHMED, J.‑I agree.

 

MUHAMMAD GUL, J.‑I agree.

 

S.A.H. Appeal accepted:

 

 

Print Friendly, PDF & Email