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1974 S C M R 33

 

Present : Hamoodur Rahman, C. J., Muhammad Yaqub Ali

and Muhammad Gul, JJ

 

Syed FAIZ ALI SHAH (REPRESENTED BY HEIRS)‑Appellant

 

versus

 

CHIEF ADMINISTRATOR OF AUQAF, LAHORE‑Respondent

 

Civil Appeal No. 21 of 1967, decided on 19th June 1973.

 

(On appeal from the judgment and order of the High Court of West Pakistan, Bahawalpur Circuit, Baghdadul Jadid, dated the 5th June 1961, in F. A. O. No. 6 of 1961/BWP).

 

Gut Muhammad Khan, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record for Respondent.

 

Dates of hearing : 18th and 19th June 1973.

 

JUDGMENT

 

HAMOODUR RAHMAN, C. J.‑This appeal by special leave arises out of a judgment of a Division Bench of the former High Court of West Pakistan, Bahawalpur Circuit, dismissing a Letters Patent Appeal on the ground that it was barred by limitation.

 

This Letters Patent Appeal arose out of a judgment of a learned Single Judge of the said High Court delivered on the 14th of July 1964. An application for the copy of the said judgment was made on the 18th of July 1964, but, since the High Court closed for its summer vacation on the 20th of July 1964, the copy could not be made ready until the 4th of September 1964. Even then, it is said, no date was given to the applicant for collecting the copy and the applicant thinking that the High Court was closed did not also make any enquiry. The High Court re‑opened on the 27th of September 1964, and the copy was taken delivery of seven days later on the 5th of October 1964.

 

The L. P. A. was filed on the 8th of October 1964, when the office affixed a note on top of the Memorandum of Appeal itself to the following effect :‑

 

“This Letters Patent Appeal is against the order of his Lordship Mr. Justice Anwarul Haq Judge dated 14‑7‑64. It is barred by limita tion by ten days. It is properly stamped. Copy of order appealed against is attached.

 

Submitted for orders.

Mahmood Ahmad,

Clerk C. B.

8‑10‑64.

 

(In Kacha Peshi)

(Sd.) 8‑10‑64

 

To be heard on 28‑10‑64

by D. B.”

 

On the latter date the D. B. before which the appeal was laid passed the following order :‑

 

“We however direct that this appeal shall be set down for hearing during the next Circuit. Mr. Bhatti undertakes to take all steps to have his paper book ready and notice served.

 

(Sd.) Judges.”

 

The word “however” in this order, it is pointed out, is significant and seems to suggest that notwithstanding the office‑note, the Court admitted the appeal and directed it to be set down for hearing during the next Circuit.

 

In spite of this when the appeal actually came up for hearing on the 19th of January 1965, before another Division Bench, the Court suo motu, without any objection being raised by the respondent, raised this question of limitation and confronted the learned counsel appearing in support of the appeal with the office‑note.

 

The learned counsel, taken by surprise, sought to argue that since the rules of the High Court, which prescribe the time for filing of Letters Patent Appeal, also confer jurisdiction on the admitting Bench alone to determine questions of limitation, it must be taken that the admitting Bench had in the present case seen the office‑note and in spite of it, admitted the appeal for hearing. The delay, if any, had, therefore, been condoned.

 

The learned counsel, it is further said, also sought for an opportunity to file an affidavit showing cause for the condonation of the delay, if any, in view of the special circumstances of the case. But the same was not allowed.

 

This argument did not find favour with the Bench. It took the view that since no specific order condoning the delay had been recorded by the admitting Bench the delay had not been condoned. Furthermore that since this was not a certified appeal, it was not necessary to file any copy of the judgment and thus the time spent in obtaining a copy of the judg ment would not be allowable. In any event, even if the time spent for obtaining the copy of the judgment was allowed, the appeal would still be barred by 7 days and since no application for condonation of delay had been filed, in spite of the office‑note, the appeal must be dismissed as being barred by limitation.

 

The further contention that the period during which the High Court was closed for the summer vacation should be excluded while computing the period of limitation was also rejected on the ground that “if two periods of exemption, apart from the basic period of limitation, run side by side, they cannot be tagged to each other but they start running out simultaneously and not that one will operate after the other has ended”.

 

Leave was granted in. this case to consider whether in view of the pro visions of rule 4 of Chapter I‑A of Vol. V of the Rules and Orders of the High Court, giving jurisdiction to the admitting Bench alone to decide the question of limitation, the admission of the appeal in the present case by that Bench could be deemed to have been made after condoning the delay. If so, whether it was open to the Bench before which the appeal came up for final hearing to again go into the question of limitation. Furthermore, should not the Bench finally hearing the appeal have, in any event, given to the appellant a last opportunity to explain the delay in the filing of the appeal.

 

The learned counsel appearing in support of this appeal has, of course, raised the question of the jurisdiction of the Bench finally hearing the appeal to go into this question of limitation. According to him, since section 3 of the Limitation Act does not apply to Letters Patent Appeals, the rules of the High Court prescribing the limitation for such appeals alone are applicable, and if they give exclusive jurisdiction to the admitting Bench to condone delay the order of that Bench admitting the appeal is final and the Bench hearing the appeal can then only dispose it of on merits without going into the question of limitation.

 

Rule 4 of Chapter 1‑A(a) of Volume V of the High Court Rules and Orders reads as follows :‑

 

“4. Every appeal to the High Court under clause 10 of the Letters Patent from a judgment of a Judge sitting singly on the appellate side of the High Court shall be presented within 30 days from the date of the judgment appealed from unless the admitting Bench, in its discretion for good cause shown, grants further time.

 

The period of limitation for the presentation of an appeal against the judgment of a Single Judge exercising original jurisdiction is 20 days from the date of the judgment (Article 151 of the Schedule to the Indian Limitation Act, 1908).

 

In an appeal under clause 10 of the Letters Patent, the memorandum of appeal need not be accompanied by a copy of the decree, order or judgment appealed from, but where a certificate is required under clause 10, the memordandum of appeal must contain a declaration to the effect that the Judge who passed the judgment has certified that the case is a fit one for appeal. The time spent in obtaining the certificate (including the date of application and the date of the order granting certificates) shall be excluded in computing the period of limitation.

 

The periods of limitation prescribed in this Rule, shall be computed in accordance with the provisions of section 12 of the Indian Limitation Act, 1908.”

 

The above Rule appears to be a complete code in itself and makes the provisions of only section 12 of the Limitation Act applicable, but in the view we have taken in this appeal, we do not consider it necessary to go into this question. We are of the opinion that since the Court, finally hearing the appeal, raised this question sue motu in spite of the order oil the admitting Bench, which was capable of being interpreted as an order admitting the appeal notwithstanding the office‑note regarding the delay, the Court should have in fairness granted the prayer of the learned counsel appearing in support of the appeal to file an affidavit explaining the delay and praying for its condonation if the explanation appeared to be satisfactory even if no application for condonation had been filed earlier.

 

The learned counsel appearing for the respondent has, of course, con tended that in the present case since no application for condonation was filed in spite of the office‑note, the appellant was not entitled to any further indulgence. He has also referred to the original endorsement of the copying section on the certified copy of the judgment to show that the appellant was negligent in taking the copy which had been made ready as early as the 4th of September 1.964. In fact, it is said, that he bad to pay a fine for the purpose.

 

He has also relied on two decisions of this Court, namely. A to Ullah Malik v. Custodian, Evacuee Property (P L D 1964 S C 236) and Ahsan Ali v. District Judge and others (P L D 1969 S C 167) in support of his contention that the order of the admitting Bench cannot he treated as an order impliedly condoning the delay since there was nothing in the order to show that the Bench concerned was conscious of the fact that the proceedings were at the time barred by limitation.

 

We are unable to accept this contention. The word “however” used in the order of the admitting Bench, as already pointed out, would not have been used if the admitting Bench had not beers conscious of the office‑note regarding limitation. It seems to indicate that notwithstanding the office- note the admitting Bench admitted the appeal for regular hearing and this it could only have done after condoning the delay as required by the Rule quoted above.

 

We have also been unable to discover any provision in the High Court Rules for the imposition of any fine for delay in taking delivery of a certified copy. In the circumstances, we are unable to accept the contention that the “Tawan” referred to in the endorsement on the copy was necessarily for any delay in taking delivery of the copy.

 

In our view, since the order of the admitting Bench was susceptible of the interpretation that the delay, if any, had been condoned, it could weld have misled the appellant and his learned counsel into believing that the delay having been already condoned no further application for the con donation of the delay, if any, was necessary. In the circumstances it was only fair that the Bench finally hearing the appeal should have when raising this question suo motu, without any objection from the respondent, given and opportunity to the appellant to explain the delay.

 

We cannot also ignore the fact that the appellant might well have been misled into thinking that the copy would not be available during the vacation of the High Court, particularly since the copying section had not given him any date for the delivery of the copy. The same High Court, it appears has held in the case of Gul Muhammad v. Allah Ditta (P L D 1960 Lah. 443) that it is implied in paragraph 2(ii)(d), Chapter XIV‑D of Volume 1, High Court Rules and Orders that the copying agency will inform the applicant to take delivery of the copy on a certain date.

 

The same decision also lays down that the time requisite for obtaining copies of the judgment and decree sought to be appealed from under the Letters Patent is to be excluded under section 12 of the Limitation Act in computing the period of limitation.

 

This view is in accord also with the views expressed by a Full Bench of the Lahore High Court in the case of the Punjab Co‑operative Bank Ltd. v. official Liquidators, Punjab Colton Press Co. Ltd. (A I R 1941 Lah. 257).

 

Unfortunately neither of these decisions was noticed by the High Court.

 

The same has since been taken in a later case by a Division Bench of the Karachi Seat of the West Pakistan High Court in the case of Karachi Municipal Corporation v. Messrs Karini & Co. (P L D 1967 Kar. 537).

 

According to this view the time spent in obtaining the copy was allow able and if this time up to the 5th of October 1964, is allowed there is no delay at all.

 

In the circumstances, we are of the view that there were sufficient grounds in this case for condoning the delay. On this ground, therefore, we would allow this appeal, set aside the order of the High Court, con done the delay and send the appeal back to the High Court for hearing on merits.

 

There will, however, be no order as to costs.

 

Appeal dismissed.

 

 

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