Limitation Period during time to get Certified Copy and Necessary Parties

Limitation Period during time to get Certified Copy and Necessary Parties Case Laws Civil Law Civil Revision Knowledge - Civil Law Lahore High Court Limitation Litigation & Arbitration Necessary Party Solutions - Civil Law Mr. Justice Ibad-Ur-Rehman Lodhi in his judgment has decided the issue regarding limitation period during time to get certified copy and necessary parties of appeal in Civil Revision No. 601-D of 2013.

1. With the concurrence of learned counsel for the parties, the hearing of this civil revision petition is being treated as pacca hearing.

2. This civil revision petition arises out of the judgment and decree, passed by the learned Additional District Judge, Rawalpindi, on 17.07.2013, whereby, the appeal filed by the present appellant against the judgment and decree, passed by the learned Civil Judge, Rawalpindi, on 11.01.2012, whereby, the suit, filed by the respondents-plaintiffs, was decreed, was dismissed by the learned first appellate court, declaring the same as being barred by time.

3. According to the learned counsel for the petitioner, since the learned trial court passed a decree on 11.01.2012 and on behalf of the present petitioner, an application for obtaining certified copies of the relevant record was moved with the Copying Agency concerned on 12.01.2012, but copies were received by the petitioner on 12.06.2012 and, as such, the appeal filed on 06.07.2012 could not have been held as being barred by time. In support of his such contentions, learned counsel for the petitioner has placed reliance on Gul Muhammad vs. Allah Ditta (PLD 1960 (W.P) Lahore 443), Muhammad Bakhsh vs. Nizam Din (PLD 1978 Lahore 31), Sh. Muhammad Sharif Uppal vs. Sh. Akbar Hussain and others (PLD 1990 Lahore 229), Shujahat Hussain vs. Muhammad Habib and another (2003 SCMR 176) and Mirza Muhammad Ishaq and others vs. Additional Settlement Commissioner Lands and others (2005 SCMR 973) and finally, the petitioner has prayed for acceptance of this revision petition and remand of the hearing of appeal to the learned first appellate court for decision of the same on merits.

4. Responding to such contentions, learned counsel for the respondents-plaintiffs has defended the impugned appellate decree with the plea that, in fact, the petitioner, when applied for obtaining certified copies on 12.01.2012, he was given a date for delivery of copies as 14.01.2012 and by means of the receipt, issued to the petitioner, it was clarified that, in case of non-supply of the required copies on the date fixed, the learned District Judge be approached directly or the complaint in this regard be posted in the Complaint Box. It was further clarified that, if on the date fixed for supply of the copies, the Copying Agency is not contacted, the petitioner will be responsible for any delay, caused in this regard and, as such, the copies, which were prepared on 29.05.2012, were received with a delay by the petitioner and none else, but the petitioner would be responsible for the delay, caused in filing of the appeal.

5. Heard; record perused.

6. In order to obtain certified copies of the relevant record from the file of the learned Civil Court, which passed a decree in the suit of the respondents-plaintiffs on 11.01.2012, the present petitioner moved the concerned Copying Agency of District Judge, Rawalpindi, on 12.01.2012, and in view of the receipt issued to the petitioner by the said Copying Agency, the date of supply of the copies was given as 14.01.2012. The receipt does not show as to whether either on 14.01.2012, or at any subsequent stage, the petitioner approached the Copying Agency and in response, the official of Copying Agency endorsed any future date for supply of copies. The stamp affixed on the certified copies, prepared in response to the demand of the petitioner, reveals that, the required copies were prepared on 29.05.2012 and it was the will of the petitioner that, he opted to receive such copies on 12.06.2012. Had the petitioner approached the Copying Agency on 14.01.2012, the date given to the petitioner for receipt of copies and there would be any endorsement of the Copying Agency intimating any future date for supply of copies, the position would have been different and the petitioner would not be held guilty of delay, but in absence of any such attempt, shown to have been made by the petitioner either on 14.01.2012 or subsequent thereto, in order to obtain the certified copies, the starting date in order to calculate the limitation for filing an appeal would be considered as 29.05.2012, when according to the record, the required copies were prepared by the Copying Agency.

7. In view of case-law reported as Fateh Muhammad and others vs. Malik Qadir Bakhsh (1975 SCMR 157), it has been held that, time requisite for obtaining copy within terms of Section 12(2) of Limitation Act, means interval between date of application for supply of copy and date when copy is ready for delivery. Time between date on which copy is ready for delivery and date on which applicant chooses to take delivery, in fact, is not a time “requisite” for obtaining copy and any delay caused in such like circumstances, is not condonable under Section 5 of Limitation Act, if conduct of litigant is negligent and not due to the circumstances beyond his control. In view of the apex Court, it is a settled position that, the time requisite for obtaining copy of order within the meaning of Section 12 of the Limitation Act, 1908, means only the interval between the date of application for supply of copy and the date when it is ready for delivery and even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which the litigant had no control and which could not by due diligence be avoided, can form part of time “requisite” for obtaining the copy.

8. So far as the reliance placed by the learned counsel for the petitioner is concerned, in Gul Muhammad’s case (supra), the delay was condoned only for the reason of the carelessness of the office of Copying Agency in giving wrong information to the applicant as to the date on which the copies would be ready, whereas, present is not a case of such like nature.

As per Muhammad Bakhsh’s case (ibid), it is the duty of Copying Agency to intimate to applicant about date on which copy would be prepared and in the reported matter, since no such date was intimated to the applicant, therefore, the delay occurred in filing of appeal was condoned. This also is of no help to the petitioner, as from inception, when the petitioner applied for obtaining certified copies on 12.01.2012, he was given a date of 14.01.2012, when copy was expected to be prepared and as noted earlier, there is no obvious attempt on the part of the petitioner to show that, the petitioner approached the Copying Agency on the date fixed and from where he was given some other future date for said purpose.

In Sh. Muhammad Sharif Uppal’s case (supra), the copies were not supplied to the applicant on the assumption that it was not ready and subsequently it reveals that, such assumption was not according to the facts and, therefore, the time was extended to the litigant in condoning the delay caused in filing of the appeal.
In Shujahat Hussain’s case (supra), again the requirement of notice, to be issued by the Copying Agency to the petitioner for collecting the certified copies was pressed upon.

In the present case, the petitioner, at the moment, when he applied for obtaining certified copy, was given the date on which the copies were expected to be ready to supply. Same is the position in Mirza Muhammad Ishaq’s case (supra).

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