1. ' This 2nd Appeal is filed against the impugned judgment dated 3rd January, 1979 of the learned Vth Additional District Judge Karachi whereby appeal filed against the judgment and decree in the suit has been dismissed as time-barred.
2. ' Brief facts giving rise to this appeal are that the present appellant was one of the two defendants in suit filed by respondents Nos. 1 and 2 for recovery of Rs, 11,330.52, which was decreed by judgment dated 28th July, 1977 by the learned Civil Judge, Karachi. Against the judgment and decree, an appeal was filed which came to be heard by learned Vth Additional District Judge, Karachi and an application under section 3 of the Limitation Act was filed by the respondents with a prayer that the appeal is barred by limitation as such is liable to be dismissed. Notice of this application was issued to the appellant and after hearing both the parties the First Appellate Court dismissed the appeal as time barred by the judgment impugned herein on the ground that there was delay in obtaining the certified copies of the judgment and decree which could not be excluded in computing the period under section 12 of the Limitation Act. In this context it would be necessary to recount the necessary dates which are relevant for the purpose of computation of time involved in the obtaining certified copies. The Court of first instance announced judgment on 28th July, 1977 and the appellant applied for the certified copies of the judgment and decree on 30th July, 1977. Copying fees was estimated on 8th August, 1977, fees were deposited on 15th August, 1977, copies were made ready on 21st August, 1977, stamps supplied on 12th September, 1977, copies certified on 18th September, 1977 and the copies were delivered on 18th September, 1977. Appeal was filed on 3rd October, 1977.
3. ' It is held in the impugned judgment that appellant lost one day in applying for the copies. The cost was assessed on 8th August, 1977 and the same was deposited on 15th August, 1977. In this context it is observed in the impugned judgment that assuming that as per rule 323 of Sind Civil Courts Rules, notice was imperative and no notice was given so the appellant was constrained to deposit the fee on 15th August, 1977, still there was no justification for appellant to remain silent for nearly one month by not inquiring about the preparation of the copies and the date for supply of stamps until 12th September, 1977. The First Appellate Court has excluded 6 days' time spent in depositing copying charges for want of notice but has held appellant responsible for supplying the stamps after a delay of 22 days and the Court has further observed that the appellant should have kept himself posted about the date of preparation of the copies and should have inquired from the Copyist as to on what date the copies would be ready. The First Appellate Court has further held that the appeal is hopelessly time-barred without specifying in particular as to by how many days it is time barred.
4. ' Mr. Clement John counsel for the appellant has contended before me that under section 12 of the Limitation Act the time, which has been consumed in obtaining the copies of the judgment and decree is to be excluded while computing the period of limitation hence appeal is not time barred.
5. According to him the judgment was announced on 28th July, 1977 and he applied for the copies on 30th July, 1977 hence one day is to be deducted. The copies were delivered on 18th September, 1977 and he filed appeal on 3rd October, 1977 after 14 days. In all 15 days are to be &ducted from the period of 30 days allowed for filing of appeal after excluding the time which was consumed from the date of applying for copies till the date when the copies are finally delivered. It was further submitted that there was a delay of 6 days in depositing the copying fees and if those 6 days are also deducted, then also his appeal is within time. With regard to the delay of 20 days between 21st August, 1977 when the copies were made ready and 12th September, 1977 when the stamps were supplied, the learned counsel stated that he was not informed of the date when the copies were made ready and on his own he went and inquired on 12th September, 1977 and was informed that the copies were ready hence he supplied the stamps and in this context he relies upon Rule 323 (1) of the Sind Civil Courts Rules (hereinafter to be referred as the said Rules), which provides for communication of such intimation to the applicant. The legal position with regard to the computation of time under section 12 of the Limitation Act is very clear and the time requisite for obtaining a copy is to be excluded. The time requisite for such purpose commences from the date of application till the date when the copies are ready. Rule 323 (1) of the said Rules provides that when application for copies is made, the Record Keeper or the Head Copyist, shall number and register the application in the order of its receipt in the Register of applications for copies and translations and shall enter on the application its serial number. He shall also at once, if possible, or during the same day but ordinarily not later than the following working day ascertain the amount of copying, comparing and translation fees, when leviable, according to the scale prescribed in Chapter VIII, Appendix D and enter them on the application and communicate them to the applicant. Rule 324 (2) further provides that if the estimated amount of fees and, in the case of certified copy, also the requisite stamp is not deposited within 7 days from the date of communication under sub-rile (1) of rule 323 to the applicant, the application shall be rejected and note to that effect is to be made in column No, 24 of the Register of Applications for Copies and Translations. Rule 331 (1) further provides that a list of copies and translations ready for delivery shall be posted on the notice-board of the Record Keeper's office.
6. ' 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 provides 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 posted 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 posted 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.
7. 1977. There is no column in this rubber stamp end horsemint 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 appellant submitted before me that after he had deposited the costs be 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 posted on the notice board of the Copying Agency as required under rule 331 (1) of the said Rules.
8. 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 post 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 Sind Civil Courts Rules, the party who has applied for the copy cannot be made to suffer for it. It was held in A 1 R 1920 Pat. 278 that ordinarily an appellant is entitled, under section 12 of the Limitation Act, to exclude all the time up to the date on which the copy is ready for delivery.
9. 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 up to the date the copy was actually delivered to him. This view was adopted in AIR 1951 Him. Pra. 87 and it was held 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 Mohd. v. Allah Ditto (1) it has been held that the time 'requisite' for obtaining the copies which can be (1) PLD 1960 Lah. 443 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 (1) 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 Sind Civil Courts Rules. In the case of Kala v. Allandad (2) 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.
10. 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 applicant but of the Copying Agency in not complying with the provisions B 1 of the Sind 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.
11. ' The learned counsel for the respondent argued that delay of each day is to be explained and there should be convincing reasons to condone such delay and has cited before me some rulings which relate to section 5 of the Limitation Act, which is not in dispute in the case under consideration.
12. ' In the instant case application was made for certified copies on 30th July, 1977 and the copying fees were estimated on 8th August, 1977 and under rule 323 (1) of the said Rules it is incumbent upon the Copying Agency to ascertain the amount of copying fees on the same day when the application is received or not later than the following working day. The Copying Agency is at fault in estimating the copying fees after a delay of 8 days which is against the rules mentioned above.
13. Secondly the Copying Agency did not comply with the requirement of the same rule by communicating the estimated cost to the appellant as required under rule 232 (1) hence fees were deposited on 15th August, 1977. Stamps were supplied on 12th September, 1977 and this appears to be the date on which the Advocate had come to the copying branch to inquire whether the copies were ready and on being so informed that copies were ready on 21st August, 1977, he was asked to supply stamps, which he supplied on the same day. The Copying Agency has made another mistake by not asking for the stamps at the time when the copying fees were estimated because rule 323 (2) of the said Rules clearly provides that if the estimated amount of fees and in the case of certified copies, also the requisite stamps is not deposited within 7 days from the date of the communication under sub-rule (1) of rule 323 to the applicant, the application shall be rejected and note to that effect is to be made in column No, 24 of the Register of Copies and Translations. In any case (1) 1973 S M R. 555 (2) PLD 1977 LA., 376 after supply of stamps on 12th September, 1977 there is no reason apparent on the record to justify certifying of the copies by the Copying Agency on 18th September, 1977 when it could have been done on the same day. For these reasons that the Copying Agency has been negligent in performance of duties in accordance with the relevant rules, the appellant is entitled to exclude the whole period from the date of application for certified copies upto the date of delivery thereof while computing the period under section 12 of the Limitation Act and this proposition is fully supported by the rulings quoted above.
14. ' It is therefore held that the appeal before the First Appellate Court was filed in time. The impugned judgment is set aside and the appeal is allowed. In the result the case is remanded to the First Appellate Court for disposal of appeal on merits.
15. ' There will be no order as to costs.