' AKHTAR ZAMAN MALGHANI, J.---The instant appeal has been directed against judgment and decree dated 28-4-2006 passed by Civil Judge, Chaman in Civil Suit No,5 of 2005, whereby; suit filed by the appellant was dismissed.
' Briefly stated, facts of the case are that the appellant filed a suit for mandatory injunction, recovery, mesne profit and permanent injunction against the respondents with the following prayer:-- "It is accordingly, respectfully prayed that a decree may be passed in favour of the plaintiff and against the defendants by way of permanently restraining the defendants their agent, successor or attorney not to make any sort of alteration, deterioration and destruction in the property of plaintiff.
' By further directing to remove unauthorized occupation over one of the flat of plaintiff constructed over the shops situated at Qandhari Road, Chaman through mandatory injunction.
' By directing the defendants not to threat the tenants of plaintiff without any reasons and further the defendants be restrained from encroaching and trespassing upon the property of plaintiff.
' By directing the defendants as to make the outstanding amount of plaintiff whereas an amount of Rs,5 million is outstanding against the defendant since income of the same has not been tendered since the year, 1980 whereby, the predecessor of defendants Nos. 1 to 5 and defendant No,6 promised on number of occasions and also among the notables of the area that he will make the payment of outstanding dues, same may be recovered from the defendants.
' The mesne profit of Rs,1 million whereby, the property is being utilized by the defendants may also be granted to the plaintiff.
' By further directing the defendants to make the payment of Rs,1 million as damages also caused to the property of plaintiff.
' Any other order as may be deemed fit and proper in the circumstances of the case may also be awarded in the interest of justice".
' The suit was contested by the respondents. Out of pleadings of the parties, following issues were framed:--- "(1) Whether the suit is not maintainable in presence of the Eviction applications filed by the plaintiff? OPD
(2) Whether the suit is barred by limitation? OPD
(3) Whether the suit is hit by the provisions of section 10, C.P.C.? OPD
(4) Whether the property in dispute was rented out to the predecessor of the defendants Nos.1 to 5 at the monthly rent 500 by the plaintiff and his predecessor? OPP
(5) Whether the predecessor of plaintiff and the predecessor of defendants Nos. 1 to 5 entered into a (contract) that on establishment of flour Chakki the income will be distributed equally? OPP
(6) Whether the predecessor of defendants Nos.1 to 5 used to pay a little amount up to 1990 out of the income of flour Chakki? OPP
(7) Whether the property in dispute was constructed by the predecessor of the defendants Nos.1 to 5 with the permission of the predecessor of the plaintiff? OPD
(8) Whether it was settled between the predecessor of plaintiff and the predecessor of defendants Nos.1 to 5 that their income of the flourmill will be shared by the parties on profit and loss basis, besides the predecessor of defendants Nos.1 to 5 has to pay Rs,500 per month to Haji Khan? OPD
(9) Whether the defendant No,6 is working jointly with remaining defendants, which is in the knowledge of the plaintiff? OPD."
' It appears from the record that the learned Civil Judge after hearing the arguments on legal issues dismissed the suit vide judgment and decree dated 28-4-2006.
3. We have heard learned counsel for the appellant as well as learned counsel for the respondents.
The learned counsel for the appellant vehemently contended that the suit filed by the appellant was dismissed on the point of limitation without recording evidence, which judgment was illegal and not sustainable. He further contended that the issue with regard to limitation was a mixed question of facts and law which could not be resolved unless the parties are allowed to produce evidence, :therefore; the judgment and decree was liable to be set aside.
4. On the other hand, learned counsel for the respondents vehemently contended that the appeal filed by the appellant was barred by time as the decree was passed on 28-4-2006, whereas; application for copy of the decree was moved on 4-8-2006 when period of limitation had already been expired because appeal was to be filed against the decree, not against the judgment and any time spent in obtaining copy of the judgment could not be computed towards period of limitation. He further argued that copy of judgment indicates that tampering had been made in the dates in order to bring the appeal within time. However, he was unable to defend the impugned judgment and decree on merits.
5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment. As the learned counsel for the respondents raised objection that the appeal is barred by time, therefore; we find it expedient to first decide question of limitation. It may be noted that impugned judgment and decree were as passed on 28-4-2006, whereas; the instant appeal was presented before this Court on 5-8-2006. The copy of judgment appended with the appeal 'shows that application for isuance of copy of the judgment was moved on 28-4-2006, whereas; copy was prepared on 4-5-2006 and it was delivered to the appellant on 8-5-2006. On the other hand application for obtaining copy of decree was moved on 4-8-2006 and on the same day it was delivered to the appellant. If, time is to be calculated from the date when the copy of judgment was delivered to the appellant, the appeal has been filed within the prescribed period of ninety days. The learned counsel for the respondents argued that in computing period of limitation prescribed for an appeal only time requisite for obtaining copy of the decree is to be excluded and not the time requisite for obtaining copy of the judgment because under section 96 the appeal has been provided against the decree and not against the judgment but we are not impressed by the arguments of the learned counsel as the same were based on misconception of law, ignoring the provisions of Order XLI, Rule 1, C.P.C. And section 12(2) and (3) of Limitation Act, 1908. It may be observed that section 96 is to be read with Order XLI, Rule 1, C.P.C. Which provides that memo. Of appeal shall accompany a copy of judgment and it is well- settled law that if copy of judgment or decree is not filed along with the appeal, the same will not be presumed to have been validly presented/filed. The learned counsel in this regard referred to the judgments wherein it has been held that without filing copy of the decree the appeal would not be maintainable but there are also judgments wherein it has been held that, memorandum of appeal must also be accompanied by a copy of the judgment otherwise the presentation is not valid, if any case-law is needed, we may refer to the B judgment -reported in 1991 CLC 1288, wherein; it was observed as under:-- "Under Order XLI, Rule 1, C.P.C. It is incumbent upon the appellant to append with the memorandum of his appeal certified copies of the impugned judgment and decree of the court below. The appellate Court has the power to dispense with the copy of the judgment but has no power to dispense with the copy of the decree. An appeal in which the memorandum is not accompanied by a certified copy of the judgment will not be considered to have been validly presented and therefore would be liable to be dismissed unless the Court dispensed with the said copy."
Similarly, under section 12 of Limitation Act, 1908 in computing the period of limitation prescribed for any appeal the time requisite for obtaining both, a copy of the judgment as well as a copy of decree, shall be excluded except where these two periods overlap each other. There is no obligation imposed upon an appellant to file application for copies of judgment and decree at one and the same time. He can make his application for copies at different times. In such case, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining the copy of the other document, after the time originally fixed for filing an appeal under the law of limitation but before the extension of time allowed by reason of the time required for obtaining copy of one of these documents expires, will entitle the appellant to extension of time required for obtaining copy of other document, because; section 12(2) of the Limitation Act, 1908 provides a relaxation by way of exclusion of time requisite for obtaining copy of decree while subsection (3) relates to copy of judgment. Subsections' (2) and (3) of section 12 of the Limitation Act allow the appellant to avail exclusion of aggregate period occupied in obtaining copies of both the judgment and decree as of right. However; when applications for copy of decree and judgment are made separately but within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice which is to be computed only once.
' In the judgment reported in AIR 1924 Patna 113 while dealing with the above stated proposition, it was held as under:--- "No doubt, an application for copies of the judgment and the decree must be made before the expiry of the time for filing an appeal. There is, however, no obligation imposed upon an appellant to file applications for copies of judgment and decree at one and the same time and therefore he can make his applications for copies at different times. It seems to be settled by Authorities that the applications made at different times will entitle the appellant to take advantage of the time occupied in obtaining copies of both judgment and decree. Now, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining copy of the other document after the time originally fixed for filing an appeal under the law of limitation but before the extension of time allowed by reasons of the time required for obtaining copy one of these documents expires, will entitle the appellant to extension of time required for obtaining copy of the other document."
' Likewise; above said view was confirmed in Abdul Ghafoor v. Sher Muhammad PLD 1961 Lahore 366, wherein; it was observed as under:-- "Under these provisions an appellant can, for purposes of his appeal, take advantage, as a matter of right, of the time spent in obtaining the copies of the judgment and the decree passed against him. It is open to him to make separate applications to get these copies on different dates. This is, however, subject to the rule that while the appellant can wait to apply for the copies till last date of limitation, he is not permitted to do so after it has expired. If the time prescribed for any action has already run out, no subsequent action will bring it back to life. The legal requirement, therefore is that to interrupt the running of the time, action must be taken before the prescribed time has run out.
' In another judgment reported in 2002 M LD 1995 the Hon'ble Judges while dealing with the proposition observed as under:- "The import of subsections (2) and (3) of section 12 of Limitation Act would be that the appellant is entitled to avail exclusion of aggregate period occupied in obtaining copies of both, the judgment and decree as of right. But when applications for copies of decree and judgment are made, of course within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice. In other words, the overlapping period is to be computed only once; for, it is a settled concept that the time runs only once and not twice".
6. The learned counsel next argued that there was tampering in the dates of application, preparation of copy and delivery of copy, but after having perused the original record we find no substance in his arguments because the original record indicates that the application for copy was moved on 28-4-2006, on the day when the judgment was announced, whereas; copyist of civil Court, Chaman has inscribed the date as 8-5-2006 under his signature which means copy was prepared on the said date and not earlier, therefore, there was no tampering in the dates and period spent between 28-4-2006 and 8-5-2006 has to be excluded for the purpose of computing period of limitation prescribed for the appeal. After holding the appeal to be within time, we do not consider it necessary to dilate upon arguments advanced by the learned counsel in respect of application for condonation of, delay as there was no necessity for filing of such application.
7. Adverting to merits of the case, admittedly; issue of limitation is mixed question of fact and law which could not be decided without affording opportunity of leading evidence to the parties but the learned Civil Judge decided the said issue on the presumption that first default was claimed to have occurred in the year 1990, as such; period of limitation would start from 1990 and suit having not been filed within three years from 1990 was barred by time, ignoring the fact that the plaintiffs were claiming share in the joint business, which was a recurring cause of action and a continuous wrong. Besides; the appellant has also claimed amount in respect of damage caused to the property as well as relief for directing the defendants to remove unauthorised occupation over one of the flats allegedly occupied by them after dispossessing tenant of the appellant. When damage was caused or when tenant of plaintiff was dispossessed could not be decided on the basis of pleadings of parties but it requires evidence.
' For the foregoing reasons, we are inclined to set aside the judgment and decree dated 28-4-2006 passed by Civil Judge, Chaman and remand the case with the direction to decide the same afresh in accordance with law and in the light of observations made hereinabove.
' Parties are left to bear their own costs.