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P L D 1962 (W. P.) Peshawar 21

 

Before Anwarul Haq, J

 

ZIAUL HAQ–Petitioner

 

versus

 

DR. A. BRABANT AND ANOTHER-Respondents

 

Civil Miscellaneous Revision No. 289 of 1961, decided on 6th December 1961.

 

Saifur Rehman Kayani for Petitioner.

 

M. Ghulam Robbani for Respondents.

 

Date of hearing : 4th December, 1961.

 

JUDGMENT

 

This revision petition seeks a reversal of the order passed by Mr. Shah-ur-Rehman, District Judge, Haaara, on the 27th of September 1961, by which he vacated a temporary injunction granted to the petitioner by the trial Court, in a suit in which the petitioner was seeking a declaration to the effect that he was a permanent employee of the Pakistan Tea Board, and the order of his dismissal passed by the Secretary of that Board was ultra vires, illegal and inoperative, and as a consequential relief he had prayed for a permanent injunction against the Tea Board, restraining them from interfering with his duties as a Field Assistant. The learned District Judge held that the trial Court had not complied with the instructions contained in para. 3 of Chapter I-L of Volume I of the Rules and Orders of the High Court while issuing the temporary injunction, and further that on merits it was not a fit case for the issuance of an injunction in view of the dicta in Punjab Province v. Syed Akhtar Ali (P L D 1956 Lah. 886) and Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury (P L D 1961 S C 531). Before the learned District Judge a preliminary objection was raised on behalf of the petitioner that the appeal was time-barred, but the argument was repelled, and the appeal was held to be within time.

 

2. Mr. Saifur Rehman Kayani, the learned counsel appear ing for the petitioner, has contended before me that the appeal filed in the District Court by respondent-defendants was barred by time, and that the view of law taken in this behalf by the learned District Judge is erroneous. Before dealing with this question, I may, however, dispose of a preliminary objection raised by Mr. Ghulam Rabbani, the learned counsel appearing for the respondents, to the effect that a revision does not lie against an interlocutory order under section 34 of the North-West Frontier Province Courts Regulation, 1931, which regulates the exercise of revisional powers of the High Court in the former North West Frontier Province. In support of his contention, the learned counsel relies on Firm Lal Chand Mangal Sain v. Firm Behari Lai Mehar Chand (A I R 1924 Lah. 425) and L. Lai Chand v. Karam Chand (A I R 1935 Posh. 33).

 

3. Section 34 of the North-West Frontier Province Courts Regulation, 1931, is to the following effect:–

 

” 34. (1) The Court of the Judicial Commissioner may call for the records of any case in which no appeal lies to it, and-

 

(a) If the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction with material irregularity, or

 

(b) if on application made to it the Court of the Judicial Commissioner is of opinion that there is an important question of law or custom involved and that such question requires further consideration,

 

the Court of the Judicial Commissioner may make such order in the case as it thinks fit

 

Provided that : (1) no application under clause (b) shall be admitted after the expiration of ninety days from the date of the order in respect of which the application is made, unless the applicant satisfies the Court of the Judicial Commissioner that he had sufficient cause for not making the application within that period ;

 

(ii) no such application shall be admitted in a small cause under the value of one thousand rupees or in an unclassed suit under the value of two hundred rupees ;

 

(iii) on any such application the Court of the Judicial Com missioner shall not revise the decision of the Court below except in so far as such decision involves the question of law or custom in respect of which the application has been admitted ; and

 

(iv) when any such application has been admitted, the Court of the Judicial Commissioner shall, subject to proviso (iii) treat the matter of the application as if it were an appeal.

 

Explanation.-A question of procedure is not a question of law or custom within the meaning of clause (b).

 

(2) In computing the period of limitation mentioned in proviso (i) to subsection (1), and in all respects not herein specified, the limitation of the application shall be governed by the provisions of the Indian Limitation Act, 1908.

 

(3) Section 115 of the Code of Civil Procedure, 1908, shall not apply in the territory to which this Regulation extends.”

 

4. It will be seen that section 115 of the Code of Civil Procedure, 1908, was expressly excluded from application in the territory to which the Regulation of 1931 was applied, namely, the territory for the time being administered by the Chief Com missioner of the North-West Frontier Province. The High Court of West Pakistan having succeeded to the jurisdiction of the Court of the Judicial Commissioner, in the former N.-W. F. P., the present revision application is governed by section 34 of the Regulation of 1931 and not by section 115 of the Code of Civil Procedure, 1908.

 

5. The learned Judicial Commissioner, who decided the case of L. Lal Chand v. Karam Chand, expressed the view that although the phraseology of this section is a little different from that of section 115, Civil Procedure Code, in substance the principle involved is the same, and on this basis they proceeded to examine various, authorities dealing with the scope of section 115 of the Civil Procedure Code. They came to the conclusion that an interlocutory order or intermediate proceedings were cot included in the term “case decided”. Among other authorities they also placed reliance on A I R 1924 Lah. 425, which was decided by a Full Bench of the Lahore High Court.

 

6. The view taken by the Full Bench of five Judges of the Lahore High Court in A I R 1924 Lah. 425, was expressly overruled in Bibi Gurdevi v. Chaudhri Mohammad Bakhsh and others (A I R 1943 Lah. 65), by a Full Bench of that Court, consisting of seven edges. After an exhaustive review of the case law, their Lordships came to the following conclusion :-

 

“The word `case’ in section 115 is wide enough to include interlocutory orders passed in a suit.

 

The word `case’ does not always mean the whole suit. It is of a very wide import, and means any state of facts judicially considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding, a question of this kind as distinguished from purely formal and incidental order is a case decided within the meaning of section 115, but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.”

 

7. It seems to me that section 34 of the North-West Frontier Province Courts Regulation, 1931, is, if anything, wider in scope than section 115 of the Civil Procedure Code, inasmuch as Clause (b) of subsection (1) of section 34 of the Regulation contains a further provision for interference in revision in cases where the Judicial Commissioner is of opinion that there is an important’ question of law or custom involved in the case and that such question requires further consideration. Even if section 34 of the Regula tion is regarded as being analogous to section 115 of the Civil Procedure Code, it is clear that, in view of the pronouncement of their Lordships of the Full Bench of the Lahore High Court in the case of Bibi Gurdevi v. Chaudhri Mohammad Bakhsh and others, it must be held that a revision would lie under this section in respect of interlocutory orders passed during a suit. On this view, it would appear, with the greatest respect to the learned Judicial Commissioners, that the decision in the case of Lal Chand v. Karam Chand (A I R 1935 Pesh. 33), can no longer be regarded as laying down the correct law.

 

8. Having held that a revision does lie in the present case. I now proceed to examine the question of limitation, raised on behalf of the petitioner. The trial Court passed the order in favour of the petitioner on 19-7-1961. The respondent-defendants applied for a copy of the order on 31-8-61, the copy was delivered on 5-9-61, and the appeal was filed in the District Court on the same day. The Civil Courts were closed for long vacation for the whole of the month of August 1961. The period of limitation being 30 days under Article 152 of the Schedule to the Limitation Act, it would expire on the 19th of August 1961. However, as the Civil Courts were closed on that day, the appeal could have been filed on the day that the Courts reopened, i.e., the 1st of September 1961. Instead the appeal was filed on the 5th of September 1961. It was, however, contended by Mr. Ghulam Rabbani, and the contention prevailed with the learned District Judge, that due to the long vacation of the Civil Courts, the period of limitation stood extended up to the 1st of September 1961, and as the application for a copy of the order was made within the extended period, the time spent in obtaining the requisite copy was to be excluded, and if that is done the appeal would still be within time.

 

9. Mr. Ghulam Rabbani referred to Ram Chand v. Ram Rattan and others (A I R 1928 Lah. 655). In that case the time for filing an appeal bad expired during the vacation. The appellant applied for the copies of judgment and decree after the prescribed period, but while the right of appeal was subsisting, before, the Court was opened, and obtained the copies two days after the Courts opened. The appeal was filed on the next day of obtaining the copies. Addison, J. held that copies could be applied for at anytime when the right of appeal still subsisted, even though the application was made after the expiry of the period prescribed. The appeal was held to be within time. This view of Addison, J. ran counter to the view earlier adopted by Johnstone, C. J. in Guran Bakha v. Bindraban and another (A I R 1916 Lah. 407), where it was observed that “in computing the period prescribed for an appeal, the time requisite for obtaining copies is excluded only if the application for copies is made while the right of appeal subsists, and an appellant cannot be allowed to let the whole of the period allowed for appeal to expire and then take advantage of the holiday which happens to occur towards the end of that period”. This question was considered exhaustively by their Lordships of the Privy Council in Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others (AIR 1935 P C 85), and it was observed as

 

“The language employed in section 4 (of the Limitation Act) indicates that it has nothing to do with computing the prescribed period. What the section provides Is that, where the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens, so that there is nothing in the section which alters the length of the prescribed period, whereas in section 14, and other sections of a similar nature in the Act, the direction begins with the words : `In computing the period of limitation prescribed for any application’, certain periods shall be excluded.”

 

10. It is clear, therefore, that In the present case the period of limitation expired on the 19th of August 1961, but as or, that date and the following days, of the month of August the Civil Courts were closed, under section 4 of the Limitation Act the respondents were entitled to present their appeal on the day the Courts reopened, namely, the 1st of September 1961. C But the period of limitation did not stand extended up to the 1st of September 1961. The time spent in obtaining a copy of the order appealed against could only be excluded under section 121 of the Limitation Act if the application for the copy had been made before the expiry of the period of limitation: and not after such expiry, as was done in the present – case. As the appeal was presented not on the 1st of September, but on the 5th of Septem-1 her 1961, it must be held to be barred by time.

 

11. Mr. Ghulam Rabbani made a submission that as the order of the trial Court granting the temporary injunction to the plaintiff-petitioner was in violation of the principles enunciated by the High Court in P L D 1956 Lah. 886, and by the Supreme Court in P L D 1961 S C 531, It was s fit Limi case where the time should be extended under section 5 of the tation Act. He also pointed out that on the day the order was passed by the trial Court, the respondents were not present and they learnt of the order during the vacation in the month of August 1961. Mr. Saifur Rehman, the learned counsel for the petitioner, pointed out that the parties were represented before the trial Court on the 26th of July 1961, and for that reason the respondents must be presumed to have knowledge of the impuged order at least on that date, and counting from that date as well, the appeal would be time-barred for the reasons indicated earlier. I find that the material before me Is not sufficient to come to a positive findings as to the date on which the respondents acquired knowledge of the order in question. In any case that was one of the reasons which could have been urged in an application under section 5 of the Limitation Act, but as no such application was ever submitted to the learned District Judge, there has been no finding whether there was sufficient cause for delay in filing the appeal. The assertion that the impugned order runs counter to certain authoritative pronuncements of this Court and of the Supreme Court is not a sufficient cause within the meaning D of section 5 of the Limitation Act. In the absence, therefore, of an application under section 5 of the Limitation Act, it cannot be determined whether there was sufficient cause for the respon dents’ delay in filing the appeal In the District Court, and the question of condoning that delay cannot arise.

 

12. The result, therefore, is that the appeal filed by the respondents in the District Court was beyond limitation, and as no application for condonation of delay was made under section 5 of the Limitation Act, the appeal could not be entertained and was bound to be dismissed under section 3 of the Limitation Act. I would, therefore, accept the present revision petition and, setting aside the order of the learned District Judge, restore that of the trial Court. The petitioner would have his costs from the respondents.

 

13. In view of the continuance of the temporary injunction, I would direct that the trial of the suit be expedited by the learned Sub-Judge at Mansehra.

 

K. B. A. Petition accepted.

 

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