' ABDUL RASHEED KALWAR, J.---The Civil Appeal (Haji Umer v. Province of Sindh and others) was not admitted on the point of limitation and 1st Additional District Judge, Thatta dismissed the appeal in limine. The applicant has filed this Revision Application which is today fixed for Katcha Peshi. Notice of the Revision Application has been served upon the respondents and Mr. Farooq Hashim, Advocate is present on behalf of the respondent No,6, whereas none has appeared for other respondents.
2. Mr. Abdul Shakoor Abbasi, learned counsel for the applicant has stated that the judgment was passed by the trial court on 27-11-2006 whereas decree was prepared on 30-11-2006. He had applied for certified copy on 5-12-2006; cost was paid and stamps were supplied on the first day; copy was made ready on 13-12-2006 and the same was delivered to him on 19-12-2006. He presented the appeal before the District Judge, Thatta on 11-1-2007.
'He has argued that appeal was presented after 41 days of passage of decree. As per him, the intervening period of 15 days in between the date of application for certified copy and its delivery i.e, from 5-12-2006 to 19-12-2006 should have been excluded by the appellate court while computing the limitation for filing the appeal; which the court has failed. He has further argued that after the insertion of subsection (5) in section 12 of the Limitation Act, he was legally entitled to the notice for date of delivery of the certified copy. The applicant is living 100 k.m. Away from court, therefore, he cannot know about the readiness of copy unless notice has been sent to him. Since he has not received any intimation notices therefore the time elapsed between the preparation of copy and its delivery i.e,13-12-2006 to 19-12-2006 cannot be treated to have been consumed by the applicant, but, it would be treated as time requisite in obtaining the copies. He has relied upon the cases reported as Mirza Muhammad Ishaque and others v. Additional Settlement Commissioner Lands and others 2005 SCM R 973, Messrs Pak Suzuki Motor Co. Ltd. v. Haji Ahmed Shaikh and another 2005 CLC 680 and Mst. Rukhsana Ahmed v. Tariq Ataullah PLD 1977 Kar. 564 in support of his plea.
3. Learned counsel for the respondents has argued that applicant was negligent in pursuing to collect the copies. He did not wait for any intimation and went to collect the copies on 19-12-2008, as such he could have also gone on 13-12-2008. Therefore he is not entitled to claim the time between 13-12-2008 and 19-12-2008 as time consumed for obtaining copies. He has relied upon the case reported as Ghulam Muhammad v. Malik Abdur Rashid and 2 others 2002 CLC 295.
4. Heard both the learned counsel and perused the material available on record. Before venturing in the discussion it is necessary to refer to the provision of section 12 of the Limitation Act:-- "12. Exclusion of time in legal proceedings.--(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from such period is to be reckoned shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed form or sought to be reviewed shall be excluded.
(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
(5) For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, 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."
5. Besides the statutory provision, let us have a guidance from the case-law available on the subject. In the case-law cited by the learned counsel for the applicant reported in 2005 SCM R 973 the apex court had found that following order of Lahore High Court, Rawalpindi Bench on correct premises:-- "The requisite time in this case could be either 26-6-1989 until 20-8-1989 or 26-6-1989 until 5-9- 1989, depending upon the endorsement given on the slip issued by the Copying Agency or in the Register of the Copying Agency. The learned Additional District Judge has given no thought on this fact nor did he call the Register of the Copying Agency for ascertaining what was conveyed to the petitioner on 20-8-1989, the date on which the copy is said to be prepared. In case there is no notice to the petitioner for 20-8-1989 for obtaining the copy, then the time requisite for obtaining the copy shall be the time between 26-6-1989 until 5-9-1989 which had to be excluded, and which would then make the appeal within time having been filed on 1-10-1989. But in case the date mentioned for purpose of delivery was 1-10-1989 then the appeal is patently time-barred.
Reference in this connection may be made to the statement of petitioner, reflected in the impugned judgment of the First Appellate Court, where he had categorically stated that he had been contacting the Copying Agency for obtaining the copy but as copy was not prepared, he could only receive it on 5-9-1989."
' In the case-law reported as Messrs Pak Suzuki Motor Co. Ltd. v. Haji Ahmed Shaikh and another 2005 CLC 680 it has been held by Mr. Justice Mujibullah Siddiqui, (as he then was) as follows:-- "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 Chief 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 SCM R 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."
' In the case-law cited by the learned counsel for the respondent i.e, 2002 CLC 295 (Lahore) it has been held in para. No,11 at page 300 placidum "F" that:-- "As far as the question of limitation is concerned, the time requisite to obtain copy of the judgment and decree commences from the application submitted for obtaining the said copy and ends on the day when the copy is prepared and is ready for delivery. The negligence of a party in obtaining the delivery of the copy of the judgment and decree on his leisure cannot be counted as "time requisite" under the law. There is nothing on the record that the petitioner was misled by any act of the Copying Agency."
6. Rule 331 of Sindh Chief Court Rules is a relevant provision of law which provides the guidelines to copying branch in such situation, is reproduced as under:-- "331. (1) A list of copies and translations ready for delivery shall be pasted on the notice-board of the Record-Keepers' office.
(2) If a copy or translation is not claimed by the applicant within six months from the date of posting the aforesaid list, the copy shall be destroyed and the fact shall be noted in the remarks column of the register of applications for copies and translation.
(3) Where the applicant has applied that a copy should be sent to him by post, the copy shall be sent accordingly."
7. In my humble view, after the addition of subsection (5) in section 12 of the Limitation Act, the applicant has a right of notice about the day on which the copy will be ready for delivery. If such notice has not been given; the applicant cannot be responsible for explaining and accounting for the delay caused between the date of preparation of copy and the date of actual delivery. My view is fortified with the view taken in Mirza Muhammad Ashiq's case 2005 SCM R 973 and M/s. Pak Suzuki Motor Co. Ltd. Case 2005 CLC 680. Besides, section 12(5) of the Limitation Act and rule 331 of Sindh Chief Court Rules insist upon communication of the date of delivery of copies. Ghulam Muhammad's case 2002 CLC 295 is distinguishable and not attracted under the circumstances of present case because it pertains to the dispute about the limitation on the basis of copies obtained in 1989, when subsection (5) of section 12 of Limitation Act was not yet added.
Admittedly the notice/intimation was required under section 12(5) of Limitation Act was not sent to the applicant and nothing on record shows that any compliance of rule 331 of Sindh Chief Court Rules has been made by the copying agency. In this situation applicant cannot be saddled with the liability of the period elapsed between the date of readiness of the copies and the date of the actual delivery of the copies. Hence the time intervening between the date of making application for certified copies till the date of actual delivery of certified true copies of the judgment, decree or order shall be deemed as time requisite for obtaining copies.
8. The culminate effect of the above discussion is; that the learned 1st Additional District Judge, Thatta has erred in computing the limitation and he should have treated the "time requisite" for obtaining copies from 5-12-2008 to 19-12-2008 and had he done so, there was no question for not admitting the appeal on the point of limitation. Therefore, this Civil Revision Application is allowed and the impugned order is set aside. The civil appeal may be treated as having been filed within time. No order as to costs.