' HAFIZ TARIQ NASIM, J.--- Facts relating to this R.F.A. Are that the appellants filed a suit for partition against Mukhtar Ahmad, Mumtaz Ahmad, Imtiaz Ahmad, Zahida Perveen sons and daughter of Rana Saeed Ahmad and Sughran Begum widow of Rana Saeed Ahmad. The suit was contested by Mukhtar Ahmad and others, different issues were framed, however, Mahmood Ahmad one of the plaintiffs was murdered and a case under section 302, P.P.0 was registered against Mukhtar Ahmad, Mumtaz Ahmad and Irfan Saeed son of Mukhtar Ahmad vide F.I.R. No,571 dated 15-11-1995 with the Police Station City "A" Division Sheikhupura but later on the accused were acquitted in terms of compromise vide order dated 6-6-1997.
2. In the suit for partition the appellants produced Ameer Ahmad Khan son of Bashir Ahmad Khan as P.W.1, Allah Ditta son of Ismail as P.W.2, who stated that property in dispute is a joint one and has not so far been partitioned. These two P.Ws. Were not cross-examined by the respondents whereas the learned counsel for the defendants stated before the Civil Court that Mahmood Ahmad was murdered and defendants Mukhtar Ahmad, Mumtaz Ahmad have given property in dispute to the heirs of the deceased i,e, the appellants in lieu of Khoon Baha thus they declined to contest the suit and were proceeded ex parte and their names were deleted from the plaint on 15-9-1998.
3. Mukhtar Ahmad and Mumtaz Ahmad submitted two applications for setting aside ex parte proceedings as well as the setting aside the statement made by their counsel; both the application were dismissed by the learned trial Court on 29-10-1998, the revision filed by them was also dismissed.
4. Imtiaz Ahmad and Zahida Perveen respondents also declined to contest the suit so an amended plaint was filed by the appellants claiming themselves to be the owner of 11/14 shares in the property because the rest shares i,e, 3/14 was belonging to respondents Nos.1 and 2 meaning thereby that no contest between the appellants and respondents Nos.1 and 2 to the extent of their respective shares in the property.
5. After the dismissal of applications of Mukhtar Ahmad and Mumtaz Ahmad vide order dated .29- 10-1998 respondent No,3, filed an application on 12-2-1999 for joining him as defendant on the ground that he had purchased the share of Mumtaz Ahmad and Mukhtar Ahmad vide sale-deed dated 3-2-1999, this application was accepted and respondent No,3, was allowed to join as defendant, amendment plaint was filed by the appellants where the respondent No,3, filed written statement.
6. On 30-10-2000 the learned trial Court re-casted certain issues and the case was adjourned for plaintiffs' evidence but surprisingly the plaintiffs/appellants' evidence was closed and the suit was dismissed vide judgment and decree dated 7-11-2000.
7. Learned counsel for the appellants submits that when the issues were re-casted and the case was adjourned for the plaintiffs/appellants' evidence, it was incumbent upon the trial Court to direct the parties to submit their list of witnesses whom they proposed to call not later than seven days but the learned trial Court did not do so committing a material irregularity depriving the appellants from their valuable right. Further submits that the learned trial Court illegally held that the appellants are not entitled to 11/14 shares out of the property in dispute and the sale-deed dated 3-2-1999 in favour of respondent No,3 is legal and there is no land left for partition and the suit is competent, these findings of the learned trial Court are arbitrary and unjust particularly when the statements of P.W.1 and P.W.2 clearly negate the findings of the trial Court and these two P. Ws. Were not cross-examined by the learned counsel for Mukhtar Ahmad and Mumtaz Ahmad.
Further submits that the better statement of Masood Ahmad appellant was recorded on 23-6-1999 by the learned trial Court and there is no rebuttal of the same but this fact was also not appreciated by the learned trial Court resulting into serious miscarriage of justice.
8. On the other hand, the learned counsel for the respondents supports the impugned judgment and decree and mainly argued on the question of limitation. According to the learned counsel for the respondents the R.F.A. Being a time-barred one is liable to be dismissed on this short ground.
9. Arguments heard; record perused.
10. We would first of all deal with the objection of limitation raised by the learned counsel for the respondents.
11. To resolve the same we have to take note of certain dates i,e, the suit was dismissed on 7-11- 2000 certified copy of the judgment and decree was applied on 12-1-2001, the same was delivered on 20-3-2001 and the R.F.A. Is filed on 3-4-2001. The learned counsel for the appellants submits that no notice or intimation was sent to the appellants by the copy branch about the preparation of the certified copy and for the first time the appellants knew about preparation of the copy when the same was delivered to the appellants on 20-3-2001 and after receipt of . The same, the appellants filed the R.F.A. Promptly and as such there is no question of any delay because the time spent for the preparation of certified copy is always to be excluded for counting the period limitation, whereas an application for condonation of delay is filed as a matter of precaution.
12. In our view limitation is always a mixed question of law and facts. Condonation of delay in questions of limitation have to be dealt with according to the circumstances of each case. In some cases Courts have condoned delay involving lengthy period of time whereas in other cases Courts have viewed it strictly and have not even condoned a single day of lapse by a party. The crux of the above is that it is always open to the Court and the Court is duty bound to look beyond the pleadings of the parties, into the circumstances of each case when determining the question of condoning a delay under the limitation law.
13. In the present case we would like to point out some defects and deficiencies in the system of our copying agencies where people go to apply for certified copies of an order, judgment or decree.
When a person applies for a certified copy of an order, judgment and decree he is handed over with a chit/receipt and told to inquire about the copy in a few days time without mentioning the specific time for the receipt of the certified copy, whereas the applicant should know the exact date of which he would be handed over the certified copy of the document applied for whereas when the applicant after a few days goes to the copying agency to inquire about the status of his application he most of the time is told to come back after a few days and collect from the office.
This practice is also out of order and requires a major change. When an applicant goes to inquire about his application he should again be given then exact status of his pending application and the exact date on which he can come and collect the document instead of making him come over and over again to the copying agency to inquire about the required documents. When the applicant is finally handed over his required documents it is noticed that a stamp on the back of the documents is impressed on which three dates are mentioned: (1) the date of application, (2) the date of preparation of documents and (3) the date of delivery of document to the applicant.
14. As mentioned above, instead of providing a clear date of delivery upfront while applying, the applicant has to inquire day after day about the status of this application which leads to unnecessary delays and inconveniences for the applicants, so to avoid these delays and inconveniences we hereby direct to the copying agencies to properly intimate to every applicant from hereon, about the specific date of delivery of his documents upfront when the applicant first applies for the certified copy. This practice would not only eliminate undue and unwarranted inconveniences to all applicants but would also ensure a smooth, assured and certain practice of the copying agencies.
15. As far as the point of limitation is concerned it is established that the limitation starts to run when the applicant is informed about his application, in the present case admittedly there is no proof of intimation to the appellant for the preparation of his certified copy thus we are inclined to condone the delay and we have decided to proceed the case on merits, particularly when there is a settled law that the cases are to be decided on merits rather than on technicalities.
16. So far the merits of the case are concerned; we have examined the impugned judgment. To our mind the primary issue in the case was Issue No,3 the burden whereof was upon the respondents.
Although the learned trial Court has mentioned that two P.Ws. Were recorded, however, while taking off Issues Nos.4 and 5 together not even a solitary reference has been made to the said evidence. On the other hand the judgment proceeds as if evidence of the respondents have been duly recorded. In this process without there being any evidence on record it has been held that the sale-deed in favour of defendant No,3 is legal and with consideration and further that the appellants are not entitled to any share in the suit property. It is interesting to note that Issue No,3 was answered against the respondents. In the course of said exercise the learned trial Court has also proceeded to decide some Issue No,6 along with Issues Nos.4 and 5 whereas we do not find any such issue in the judgment. It appears that the learned trial Court was not aware that the issues have been re-casted and reframed.
17. So far the matter of closing of evidence is concerned, we find that the issues were reframed on 30-10-2000 while the evidence of the appellants was closed and the case was dismissed on 7-11- 2000 i,e, in a matter of seven days. We, therefore, do find that neither the learned trial Court was justified in closing the evidence in such a hurry nor the judgment is in accord with the evidence on record. Admittedly, the learned trial Court erred in law, committed material irregularity and as such we have no other option except to set aside the judgment and decree dated 7-11-2000 passed by the learned Civil Judge, 1st Class, Sheikhupura. Accordingly, the R.F.A. Is accepted, the case is remanded to the learned trial Court who shall record the evidence of both the parties on the issues framed through order dated 30-10-2000 and then decide the matter afresh on its own merits.