1. ' This revision application is directed against the judgment and decree dated 28-8-2000 and 5-9- 2000 respectively in Civil Appeal No,19 of 2000, passed by the learned District Judge, Karachi (South).
2. ' The relevant facts for the purpose of this revision application are that the applicant being aggrieved with the judgment and decree dated 20th July, 1999, passed by the learned XVI Civil Judge, Karachi South, in Civil Suit No,868 of 1995, preferred appeal before the learned District Judge, Karachi South. The respondents raised preliminary objections to the effect that the appeal was barred by time. The relevant facts in this behalf were that the judgment was announced by the learned trial Court on 15-7-1999. The appellant applied for copy on the same day. The file was received by the copyist on 16-8-1999 and on the same date cost was estimated. The cost was deposited on 18-8-1999 and the copy was prepared on 23-8-1999,. The stamps were supplied on 26-8-1999. On the same day, the copy of judgment was certified, compared and delivered to the applicant. The appeal was filed on 25-9-1999.
3. ' On the basis of above facts the learned District Judge, Karachi South, held that the applicant received the copy after delay of three days although it was prepared on 23-8-1999. He further observed that the applicant supplied the stamps to the copyist on 26-8-1999 and consequently, there was clear delay of three days in filing the appeal which was not explained and no application under section 5, Limitation Act, was filed. The appeal was admitted subject to all just exceptions including the limitation. It was found barred by time and consequently, appeal was dismissed as such.
4. ' I have heard Mr. Nasir Maqsood, learned counsel for the applicant and Mr. Mirza Sarfraz Ahmed, learned counsel for the respondent No,1, who is the main contesting party.
5. ' Mr. Nazir Maqsood, has submitted that the impugned finding of the learned District Judge, Karachi South, is contrary to the provisions of law. He has submitted that the learned District Judge has ignored the provisions contained in Rules 323 and 331(1) of the Sindh Civil Courts Rules as well as section 12(5) of the Limitation Act, 1908. He has further submitted that similar question came for consideration before a Single Judge of this Court in the case of Peninsular and Oriental Steam Navigation Co. v. Pfizer Laboratories Ltd. 1980 CLC 1972 and it was held as follows:--- "A perusal of the relevant rules as stated above indicate that it is incumbent upon the Copying Agency to estimate the costs after receipt of application, enter them on the application and communicate them to the applicant. Rule 324(1) further providers that no copy or translation shall be commenced until the estimated amount of copying fees has been deposited and if such amount is not deposited within 7 days from the date of communication under sub-Rule (1) of Rule 323 to the applicant, the application for certified copy can be rejected. It is also very clear that after the fees has been deposited and the copies are made ready a list of copies made ready for delivery is to be pasted on the notice board of the Copying Agency as required under Rule 331. It is very clear that after estimation of the cost, intimation is to be sent to the applicant by communication and subsequently, after the fees has been deposited and the costs paid, the list is to be pasted on the notice board of the Copying Agency. In the instant case the endorsement of the Copying Agency on the certified copy of the judgment clearly shows that copy was applied for on 30th July, 1977 and fees estimated on 8th August, 1977 which were deposited on 21st August, 1977.
6. There is no column in this rubber stamp endorsement of the Copying Agency with regard to the date of communication of intimation to the applicant as required under rule 323. The learned counsel for the applicant submitted before me that after he had deposited the costs he received a receipt in which date of delivery of the copies was not mentioned and he could not produce the same before the learned Additional District Judge for the reason that he had misplaced it. It was admitted at the bar by the learned counsel appearing for the both sides, that in practice date of delivery of the copies is not mentioned in the receipt. There is also no rebuttal of the assertion made by Mr. Clement John that the list of the copies prepared and ready for delivery was not pasted on the notice board of the Copying Agency, as required under rule 331(1) of the said Rules.
7. In such circumstances it would be unfair to throw burden on the Advocate or the party to go to the Copying Branch every day to enquire whether the copy is ready for delivery or not, particularly when there are specific provisions in the said rules to communicate the estimated costs to the applicant and paste the list of copies ready for delivery on the notice board and are not being complied with. If the Copying Agency is careless and negligent in performance of the duties as required under the Sindh Civil Courts Rules, the party, who has applied for the copy cannot be made to suffer for it. It was held in AIR 1920 Pat. 278 that ordinarily an appellant is entitled; under section 12 of the Limitation Act, to exclude all the time upto the date on which the copy is ready for delivery. If the delay in the actual delivery thereof has not been caused on account of any negligence or default on his part, but is due to carelessness or omission on the part of office to give him information as to the date on which he should come and take delivery of the copy and in such a case he is entitled to enlarge the time for filing the appeal upto the date the copy was actually delivered to him. This view was adopted in AIR 1951 Him. Pra. 87 and it was hold that entire period from the date of filing of the application for the copy to the date when delivery of the copy was taken, was to be excluded as the time requisite for obtaining the copy of the decree under section 12 in computing limitation period for the appeal for two reasons, firstly, that there was unexplained delay of 26 days in preparing the copies and secondly, that no intimation was given to the appellant of the date when copy was ready. In the case of Gul Muhammad v. Allah Ditta PLD 1980 Lah. 443, it has been held that the time "requisite" for obtaining the copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready or in giving no information at all. This view is reiterated in West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555, and a delay of 3 days in filing petition for special leave to appeal was condoned for the reason that the office of the High. Court did not notify that copy was ready for delivery as required under the Sindh Civil Courts Rules. In the case of Kala v. Allandad PLD 1977 Lah. 376, delay, of 16 days in between 7th April, 1964 on which date the copies were ready and 24th May, 1964 on which date the copies were delivered was excluded while computing the time under section 12 of the Limitation Act for the reason that the delay had arisen because Copying Agency did not give any date for delivery to the appellant hence the time excluded was upto the date of delivery of the certified copy.
8. ' The rulings quoted above show that the established view is that if the delay is caused in obtaining the certified copies not due to the fault of the appellant but of the Copying Agency in not complying with the provisions of the Sindh Civil Courts Rules as mentioned, above with the result that the applicant remains ignorant of the fact as to when the copy is ready for delivery, computation of time under section 12 of the Limitation Act would require to exclude whole period from the date of application till the copy is actually delivered."
9. ' He has further submitted that the above judgment was delivered in the year 1980 and subsection
(5) of section 12 of the Limitation Act was added by Limitation (Amendment Act) XIII of 1991, which reads as follows:--- "
12. Exclusion of time in legal proceedings.---
(1) ..
(2) ..
10. (3)
(4) .
(5) "For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decrede, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
11. ' On the other hand, learned counsel for the respondent has submitted that the impugned judgment is in consonance with the Single Bench judgment of this Court in the case of Muhammad Iqbal v. Karachi Metropolitan Corporation 2002 MLD 1856, wherein it has been held as follows:--- "That if the applicants would have been vigilant, the certified copy of the judgment could have been obtained earlier and the appeal could have been filed within the period of limitation."
12. ' I have carefully considered the contentions raised by the learned Advocates for the parties and the material available on record.
13. It is admitted by the learned counsel for the respondent that the Copying Branch did not adhere to the provisions contained in Rule 323(1) of the Sindh Civil Courts Rules to the extent of communication, which provides that, the Head Copyist, shall estimate the amount of copying, comparing and translation fee and enter them on application and communicate them to the applicant. It is further conceded that the provisions contained in rules 331(1) which provides that the list of copies and translation ready for delivery shall be pasted on notice board of the Record Keeper's Office, has also been ignored and has not been complied with. The effect of non- compliance of the above rules has been considered at great length in the case of Peninsular and Oriental Steam Nevigation Co. v. Pfizer Laboratories Ltd. (supra) reproduced above and therefore, no further discussion is required. So far the provisions contained in section 12(5) of the Limitation Act, is concerned, they are unambiguous and require no interpretation or explanation. It is admitted that no intimation as required under this provision was sent to the applicant. This provision came for consideration before the Honourable Supreme Court in the case of Shujahat Hussain v. Muhammad Habib 2003 SCMR 176. It was held that if the Copying Branch had not issued notice for collecting certified 'copy of judgment for a particular date in terms of section 12(5) of Limitation Act, then the time is to be calculated from the date of certifying the copy."
14. ' So far, the judgment delivered by another learned Single Judge of this Court, in the case of Muhammad Iqbal v. Karachi Metropolitan Corporation (supra) is concerned, I find that it revolves around its own peculiar circumstances and is not an authority on the point that if the Copying Branch has failed to comply with the provisions contained in Rules 323 and 331 of the Sindh Civil Courts Rules as well as section 12(5) of the Limitation Act, and has not sent intimation to a party as required, it would be for the party to make inquiry every day and deposit the cost, supply the stamp and take the delivery of the certified copy. I am persuaded to agree with the fading of learned Single Judge, in the case of Peninsular and Oriental Steam Navigation Co. v. Pfizer Laboratories Ltd., that when the law has placed B performance of an act on the Copying Branch, then the non- compliance of the provisions contained in the law and the rules shall not have the effect of saddling a party with the responsibility of delay caused due to such non-compliance.
15. For the foregoing reasons, it is held that the learned District Judge, fell in error in coming to the conclusion that the applicant was responsible for delay in depositing the cost and collecting the certified copy. The period of limitation in this case was required to be calculated from the date of supply of the certified copy.
16. ' For the foregoing reasons, the judgment and decree of the learned District Judge, South Karachi, impugned in this revision application is set aside. It is held that the appeal was within time. The case is therefore, remanded to the learned District Judge South, for hearing of the appeal afresh and decision on merits.
17. ' After hearing learned Advocates for the parties on 16-42-2004, the revision application was allowed by a short order. Theses are the detailed reasons in support thereof.