This judgment will dispose of a preliminary objection raised by the learned counsel for the respondents that the instant appeal has been filed after expiry of the prescribed period of limitation.
The necessary facts forming the background of the instant objection are that Mst. Anwer Alam, appellant filed a suit for recovery of her dowry worth Rs, 1,39,477/- before Judge Family Court Mirpur on 08.02.2005 which was dismissed vide its order dated 31.10.2005. Feeling aggrieved and dissatisfied Mst. Anwer Alam, presented an appeal before this Court on 15.12.2005.
During the course of the arguments Mian Sultan Mehmood, the learned counsel for the respondents raised a preliminary objection that the instant appeal has been filed after the prescribed period of the limitation. The learned counsel pointed out that the impugned decision was recorded on 31.10.2005, an application for obtaining copy of the decision was filed on 17.11.2005, and the copy was prepared on 30.11.2005 whereas the appeal was presented before this Court on 15.12.2005. In this manner, according to the learned counsel, the appeal was lodged after 31 days of the decision. After excluding the time requisite for obtaining the copy the delay of one day could not be explained by the appellant, therefore, the appeal is liable to be dismissed on this score only.
In support of his arguments he referred to me the following authorities:-
1. NLR 1980 Civil (Lahore)107;
2. PLD 1983 S.0 AJ&K 25;
3. 1995 CLC 773;
4. 2000 SCR 537.
Conversely, M. Riaz Alam, the learned counsel for the complainant argued that the learned counsel for the respondents has failed to appreciate phraseology of time requisite for obtaining the copy because as long as a copy is not distributed to the parties, it cannot be said that the copy has been supplied, therefore, after detecting the period for obtaining the copy, the instant appeal has been presented well within the time. In support of the arguments the learned counsel also relied upon the authority 2000 SCR 537, cited by the learned counsel for the respondents.
I have very carefully taken into consideration the points canvassed by the learned counsel for the parties, after perusing the record made available with care. It is admitted position of law that under Section 14 of The Azad Jammu & Kashmir Family Courts Act, 1993, an appeal against a decision or decree passed by the Family Court can be filed within 30 days of the date of such decision or decree before this Court. Similarly under Rule 22(1) of The Azad Jammu & Kashmir Family Courts Procedural Rules, 1998, such appeal can be filed within 30 days excluding the time requisite for obtaining a copy and the Appellate Court is empowered to extend the, aforesaid period of limitation provided the sufficient cause is proved by the appellant.
Coming to the instant case, it is admitted on the record that the impugned decision and decree were passed on 31.10.2005, whereby the instant appeal was presented before this Court on 15.12.2005. It is also admitted on the record that the appellant filed an application for obtaining copy on 17.11.2005, whereby the copy was prepared on 30.11.2005 by the copying agency, which was delivered on 05.12.2005. In the light of the detailed arguments mentioned above, the point which requires determination is that whether the time requisite for obtaining the copy which has to be excluded, includes the time till the delivery of the copy to the appellant or till that time when the copy is ready for delivery. According to the learned counsel for the respondents, the "time requisite" which has to be excluded from the period of limitation means till that time when the copy is ready for delivery and not when the same is delivered. On the contrary according to the learned counsel for the appellant, the time requisite for obtaining copy which has to be excluded is time between application for obtaining copy till its delivery. In this manner, it has to be decided in the instant case as what the time requisite for obtaining the copy means. The aforementioned controversy has been resolved since long. The basic case in this regard has been reported as Fateh Muhammad and others versus Malik Qadir Bakhsh (1975 S.C.M.R 157), whereby the time requisite for obtaining copy of judgment or order was defined in the following manner:-- "The time requisite for obtaining copy of order within the meaning of Section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy.
The above mentioned principle was followed in Muhammad Shaft's case (NLR 1980 Civil Lah. 107).
The same view was also affirmed in Rahmat Bibi and 4 others' case (PLD 1983 S.0 AJ&K 25), which reads as under:-- "Section 12(2) of the Limitation Act contemplates exclusion of time for obtaining a copy of the decree appealed from. In order to benefit of the provision, it is imperative for the party invoking aid of him to show that, it applied for the copy within the prescribed period of limitation and that no time was wasted and delay did not result of any act or omission or negligence of the party. When the party applies for the copy of the decree but the same is not provided for its non-existence whatever the time is consumed on preparation and signing of the decree to be excluded under this section".
The aforementioned view was further followed in Muhammad Nawaz's case (1995 CLC 773).
The same controversy arose before the Apex Court of Azad Jammu & Kashmir in case reported as Muhammad Amin versus Muhammad Hameed and 2 others (2000 SCR 537), whereby following the view taken by the Supreme Court of Pakistan in Fateh Muhammad's case it was opined as under:-- "From the phraseology of sub-sections (2), (3) and (4) of Section 12 of the Limitation Act, which have been reproduced above, time requisite for obtaining a certified copy has to be excluded. As explained by the Supreme Court of Pakistan in Fateh Muhammad's case, discussed above, time requisite for obtaining the copy means "the interval between the date of application for supply of copy and the date when it is ready for delivery". It was thus laid down that the said interval was to be excluded. It was not laid down that the said interval has not to be excluded as has been canvassed by Ch. Muhammad Sharif Tariq. The same view was expressed in Civil Appeal No, 81 of 1992 titled Income Tax Officer Mirpur V. Ch. Muhammad Bashir decided on 23rd November 1993. In that case application for obtaining copy was filed on 20th of June and the copy was made available on 27th of June. Eight days which were consumed in taking out the copy were excluded".
The detailed survey of the above cited case law shows that this is the consistent view of Superior Courts of Pakistan and Azad Kashmir that the time requisite for obtaining the copy means the interval between the date of application for supply of a copy and the date when it is ready for delivery. It, therefore, follows that from total 45 days only 14 days have to be excluded. As mentioned above, application for obtaining copy was presented on 17.11.2005, the copy was ready for delivery on 30.11.2005 whereas the appeal was filed after 45 days. After 14 days of deduction, when copy was ready for delivery, the instant appeal has been presented after 31 days of the decision and decree impugned whereas the present appeal had to be filed within 30 days. In such state of affairs, the appeal is time barred for one day for which no reasonable explanation has been shown on the record. It is an enriched principle of law that the delay of each day has to be explained by the party who seeks indulgence of the Court for exclusion of time.
For the reasons listed above, the instant appeal must fail in limine. It is, therefore, dismissed accordingly. The parties shall bear their own costs.