' SALMAN ANSARI, J.---This revision application under section 115, C.P.C. Had been filed on behalf of applicant/appellant/ plaintiff now deceased Mst. Noor Jahan Bhoori through her legal heir Muhammad Shabbir Khan (Husband) being aggrieved and dissatisfied by the judgment and decree, dated 3-5-2008 passed by the IIIrd Additional District Judge, Karachi East in Civil Appeal No,130 of 2005 dismissing the appeal of the applicant on the ground of limitation. Pre-admission notices of this revision application were issued to the respondents. Respondents Nos. 1 and 4 were served while respondents Nos. 2 and 3 have not been served, according to learned counsel for applicant they are narcotic addicts and he does not press this revision application against the said respondents who are brothers of respondent No,
1. No one has appeared for respondent No,4 though served.
2. Brief facts of the case are that a Suit No,210/2001 had been filed on behalf of applicant/plaintiff Mst. Noor Jahan alias Bhoori for declaration, cancellation of document and perpetual injunction against the respondents/defendants in which one of them was KDA and second party was the respondent No,
1. The applicant/plaintiff (now deceased) having received residential quarter No,J- 183, J-Area, measuring 120 sq. Yds. In Korangi Township, Karachi by way of Gift from the allottee/her husband Muhammad Shabbir Khan allotted by the KDA who had gifted the same orally thereafter by registration of Gift Deed on 19-9-1990 and was mutated in the name of the applicant, who subsequently according to the respondent gifted the same quarter to Mst. Anjum Mughees the respondent No,1 her daughter by way of gift deed in the year, 1996 and same was mutated in favour of respondent No,1 on 19-6-1997. The plaintiff/applicant was living with her husband at the disputed quarter till filing of the suit. After framing the issues and recording of evidence the suit was dismissed and decree was prepared on 15-7-2005. Subsequently, on 31-8-2005 Civil Appeal No,130 of 2005 was filed before learned IIIrd Additional Judge Karachi East which was found to have been time-barred by 13 days being without any sufficient explanation of delay and was thereby dismissed.
3. Learned counsel for the applicant has argued that learned appellate Court had erred in calculating the period of limitation, that the appeal was barred by 13 days as the copy of judgment and decree was delivered on 1-8-2005 and appeal was filed on 31-8-2005, hence was within time; 29 days. It was on the suggestion of learned Ilird Additional District Judge Karachi East to file an application under section 5 of the Limitation Act for condonation of 3 days delay, that the counsel for appellant/applicant had filed such application but 13 days delay was held committed by appellant the appellate Court found the appeal to be time-barred. It can not be said that how the time was calculated either from the date of judgment or from the date of decree. The applicant had filed application fot certified copy well before the date of decree on 11-7-2005 while decree was dated 15-7-2005, hence the impugned judgment and decree, dated 3-5-2008 be set aside. It is further argued that learned counsel at that time was suffering from ear ailment and delay even otherwise has wrongly been shown and the appeal in the interests of justice matter be heard and decided on merits.
4. Learned counsel for respondent No,1 has argued that under section 12(5) of the Limitation Act, only that time is excluded for computing the period of limitation prescribed for any appeal which period is required for obtaining certified copy of the impugned judgment and only such time is to be excluded which is actually taken by the copyist in preparation of copy no delayA which is attributed to the applicant by which time for preparation of the copy is extended can not be taken for extension of the period of limitation. Learned counsel for respondent No,1 has further argued that counsel for applicant had filed an application under section 5 of the Limitation Act, 1908 meaning thereby that there was a delay in filing of appeal and his subsequent denial of any delay is incorrect shifting the blame upon learned Judge of the appellate Court who had advised applicant to file an application for condonation of the delay would be a very weak ground which should not have been agitated, hence the appeal was rightly dismissed. In support of his contention he relied on case of Iftikhar Ali v. Sh. Abdul Rashid and others (2003 SCM R 1560) and Mst. Anisa Begum v. Atiq-ur-Rehman (2007 M LD 1385).
5. Heard arguments of the learned counsel for the applicant, respondent No,1 and perused the material placed on record.
6. In this case the impugned judgment in Suit No,210 of 2001 was passed on 7-7-2005 and decree was ready on 15-7-2005. The application for certified copy was made on 11-7-2005 and fee was estimated on the same date and fee deposited on 25-7-2005, it would be after 9 days of the preparation of decree, copy was ready on 27-7-2005, certified on 28-7-2005 and stamps were supplied on 1-8-2005 after furnishing stamps for copies the copy was delivered on 1-8-2005. Period is to be calculated from 16-7-2005 fee was deposited on 25-7-2005 which shows the time of 9 days and 4 days when stamps were furnished on 1-8-2005 same took 13 days which is the intervening period for which proper and sufficient cause has to be shown for depositing the cost and collection of certified copy.
7. As per section 12 of the Limitation Act, 1908 only period intervening in obtaining certified copy of the judgment is to be excluded which consumed by the copyist in preparation of the copy and any delay because of the applicant can not be taken for extension of the period of limitation, but considering that in present case no receipt was furnished to the appellant/applicant as stated by learned counsel to show that on what date copies were to be received after preparation and as stated by the learned counsel during his arguments that because of an ear operation his inability due to his ailment to receive the copies in time, hence, I have come to the conclusion that delay in collection of certified copy was not due to gross negligence of the appellant/applicant or his counsel.
8. Considering that where dispute is regarding rights over property of the parties closely related interest, merely deciding the appeal as being time barred would not serve the ends of justice when no gross negligence is shown also considering the age of the applicants/plaintiff who having died during proceedings.
9. The learned appellate Court has not shown in determining the delay whether it was calculated from the date of judgment or date of the decree of the Lower Court.
10. Hence, coming to the conclusion that the delay in the filing of appeal should have been condoned under the circumstances as sufficient cause for the same has been shown as envisaged under section 5 of the Limitation Act, 1908. I allow this Revision Application, setting aside the impugned judgment, dated 3-5-2008 the decree, dated 3-5-2008 passed in Civil Appeal No,130 of 2005 and direct the learned appellate Court to hear the matter afresh and decide the same on merits.
11. This is with due respect to the case law cited which in view of the discussion in the above paras the findings were found not applicable to the facts and circumstances of the matter at hand.
' Ordered accordingly.