'SHAHID ANWAR BAJWA, J.---Plaintiff No, 1 was Messrs Deen Brothers and Company, the present applicant (hereinafter referred to as the Plaintiff) and respondent No,2 was Bahadur Yar Jang Cooperative Housing Society Limited, the present respondent No,2. Case of the plaintiff was that Plaintiff is a registered partner Partnership Firm engaged in the business of construction of Housing Projects and other construction and development activities. Bahadur Yar Jang Cooperative Housing Society was a member of Karachi Housing Societies Union Limited (respondent No,12).
Bahadur Yar Jang Co-operative Housing Society was allotted Plot No, B/1, Block No,3, admeasuring 1520 sq. Yards by the Societies Union as a commercial plot vide allotment dated 1-11-1973 and after payment of full price, possession of the plot was delivered to respondent No,2 under Possession Certificate dated 4-9-1974 and necessary lease for 99 years was consequently registered in the name of Bahadur Yar Jang Co-operative Housing Society. Thereafter Bahadur Yar Jang Co- operative Housing Society invited proposals for construction of shops, godowns and flats on the aforementioned commercial plot and the plaintiff submitted their proposals vide letter dated 7-12- 1974. Thereafter plaintiff worked out details of the project, prepared a building plan, mobilized investment and prepared themselves to undertake the project/job in accordance with the terms and conditions settled between the plaintiff and the Society. Building plan was got approved and General Power of Attorney was executed by the Society in favour of the plaintiff and possession of the plot was handed over to the plaintiff on 16-9-1975. After getting necessary permissions for water connection and loan facility from House Building Finance Corporation, the plaintiff started construction work and in the process plaintiff claimed to have invested Rs, 200,000 and he advertised project in newspapers putting up shops and flats for sale and considerable number of flats were booked. On or about 5-4-1976 when the work was in progress present respondent Nos.3 to 12 in collusion with each other interfered with the possession of the plaintiff over the suit plot and ordered stoppage of construction claiming the plot to be an emenity plot. Plaintiff immediately, approached the Society which confirmed it to be a commercial plot. However, the present Respondent Nos.3 to 12 persisted that the plaintiff was carrying on an illegal construction.
Consequently plaintiff tiled a suit and after filing the suit the official respondents on wrong representation by the present private respondents without any show-cause-notice and without any inquiry issued ordes for cancellation of the suit plot and directed the Karachi Metropolitan Corporation to take over the possession. It was pleaded in the plaint that defendants therefore acted contrary to rights of the plaintiff and the order of the defendants were violative of the principle of natural justice. It was further alleged that during course of the proceedings the possession was forcibly taken away from the plaintiff. Consequently the following prayers were made in the plaint:- "a) Grant declaration that defendants 1 to 5 and all persons through or under them or for their benefit and at their behest have no right, title or interest to interfere the plaintiffs peaceful possession. Use. Occupation or raise objections to the construction of Housing Project over Plot No, B/1 Block-3 Bahadur Yar Jang Cooperative Housing Society Limited.
(b) Declaration that the orders of defendants Nos.6 to 10 dated 14/15 and all subsequent orders regarding the cancellation of the lease of Plot No, B/1, Block-3, Bahadur Yar Jang cooperative Society and the directives to take over possession of the said plot are altogether illegal, ultra vires and without jurisdiction.
(c) A permanent injunction restraining the defendants and all persons claiming through or under them, their agents, servants, employees or persons acting for their benefit and on their behest from in any way interfering with the plaintiffs possession; use and occupation of Plot No, B/1, Block-3, Bahadur Yar Jang Housing Society Limited are in no way interfere with the erection, constriction, and implement of Housing Project over the said plot according to the approved and duly sanctioned plans.
(d) A decree for possession of Plot No, 13/1, Block-3, Bahadur Yar Jang Housing Society Limited be passed in favour of the plaintiff against the defendants.
2. Written statement was filed by the private defendants. They denied that suit plot is a commercial plot and pleaded that suit plot is an amenity plot reserved for park as shown in the Master Plan and the owners of the plots of the locality have acquired valuable tenancy rights on the basis of master plan and that the plot in question was continuously used by the residents for assembling there in the evening to enjoy out door activities. It was further contended that the Society fraudulently and by misrepresentation obtained the allotment and lease in respect of the suit plot and illegally and incorrectly described it as commercial plot. Therefore, subsequent actions of the society were in violation of law. It was also pleaded that the market value of the suit plot was wrongly shown and was grossly understated. K.M.C. Also filed a written statement claiming that the suit was not maintainable because it was barred by virtue of MLO 34/1977. It Was stated by the Corporation that the plot was part of the plot SNPA-72 which is an amenity plot as per sanctioned lay out plan. It was also stated that the plot was resumed and vested with KMC under MLO 34/1977 and all subsequent actions of the plaintiff were stated to be illegal and of no legal effect. It was also stated that KMC was maintaining plot as Park and it was for that purpose plot was delivered by K.C.H.S. Union and that the plaintiff is not entitled to the relief claimed.
3. After pleadings of the parties were filed following issues were framed by the trial Court.
"(1) Whether the suit is barred by virtue of MLO 34 read with MLO 89?
(2) Whether the suit is bad for non-joinder of necessary party?
(3)
(4) Whether the plot is disputed as being maintained as public Park/amenity Plot by the K.M.C. If so to what its effect?
(5) Whether the plaintiffs had any subsisting cause of action/locus standi to file the suit?
(6) What should the decree be?"
4. The trial Court vide judgment dated 31-5-1997 decreed the suit as prayed and decree was issued accordingly. Being aggrieved by the order of the trial Court Civil Appeal No,40 of 1999 was filed. The appeal was accepted by the Appellate Court and judgment and decree of the civil Court was set aside. This Revision Application has been filed to challenge and to impugn judgment of the Appellate Court.
5. On Issue No,4 the trial Court held that since the plot was leased by the Union to the Society as commercial plot and since no show-causenotice was issued to the plaintiff before cancellation of allotment/lease, firstly the cancellation and lease being in violation of principle of audi alteram part= was without lawful authority and of no legal effect and secondly since the lease was in his favour, complainant had created a subsisting interest, therefore the plaintiff could maintain the suit.
6. On Issue No,1, the trial Court observed that if the plot in question was an amenity plot it should not have been allotted to the Society nor its possession should have been delivered to the Society.
The trial Court also came to the conclusion that Plot No, B/1, (the plot in question) is not part of amenity plot SNPA-72 but was adjacent to it. The trial Court also referred to MLO 34 and held that since the plot was not an amenity plot the Martial Law Regulation 34 had no application to it. It also referred to the provisions contained in that law to the effect that it was not applicable to. An amenity plots in a housing scheme.
7. The Appellate Court framed the following points for determination:-- "(1) Whether the suit of the appellant is barred by virtue of MLO 34 read with MLO 89?
(2) Whether the public park/amenity plot can be converted into a commercial plot or residential plot in any case under any law by KMC?
(3) Whether the Lower Court has committed any illegality or irregularity by passing the impugned judgment?
8. The Appellate Court held that intention of the legislature under MLO 34 was that in any case an amenity plot cannot be converted to a commercial plot and any such conversion by the authorities would stand cancelled by provisions of MLO 34 and MLO 89. Thereafter it held that an amenity plot cannot be converted into a commercial plot. Regarding the judgment of the lower court, the Appellate Court observed that the lower Court had decided that permission had been given for conversion of the plot in question into a commercial plot. It further observed that the lower court had held that MLO 34 and MLO 89 were not applicable to the plot in question. The Appellate Court disagreed on both these conclusions, which in view of the Appellate Court, the trial Court had arrived at. On the question of limitation, the Appellate Court held that decree was passed on 31-5-1977 and month of June, 1997 was summer vacation, application for certified copies was filed by 5-7-1997 and copies were supplied on 15-7-1997 and after that within one month appeal was filed. Therefore it was within time.
9. Learned counsel for the appellant submitted that neither MLO 34 nor MLO 89 were applicable to the plot in question. He further submitted that appeal was barred by time. Lastly, the learned counsel submitted that plot in question was never an amenity plot. All that were controverted by the learned counsel for the opposite camp.
10. I have considered the submissions made by the learned counsel. The first question is whether MLO 34 and MLO 89 was applicable or not. MLO 34 was issued by the Martial Law Administrator, Zone 'C' on September 30, 1977 and is in the following words:- "In pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of the powers conferred by Martial Law Order No,3 issued by the Chief Martial Law Administrator, the Martial Law Administrator Zone 'C' is pleased to make the following Martial Law Order:- All allotments of the plots which were reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques grave yards or for such other amenity/community purposes, but were subsequently unauthorizedly or by political manoeuvers converted into residential or commercial plots land on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules."
11. It was followed by MLO 89 of 1979 issued on 19-4-1979. It is in the following words:-- "1. Allotment of amenity plots which have been converted for other purposes, in contravention of the law or rules regulating the conversion or for political consideration from Ist January, 1972 to 4th July, 1977 and on which no construction has been made shall stand cancelled land possession thereof shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded to them as admissible under the rules: ' Provided that nothing herein contained shall apply to the conversion of amenity plots in the Housing Schemes, made before coming into force of the Sindh (Amendment of Laws) Act, 1974 or in accordance with the procedure laid down in the said Act.
' Explanation:---Amenity plots mean the plots reserved for roads, hospitals, schools, colleges, libraries, play grounds, gardens, parks, community centres, mosques, grave yards or for such other public purposes.
2. Any person aggrieved by this order may, within fifteen days of the promulgation thereof prefer an appeal to Government and orders of Government on such appeal shall be final.
3. Government may, in any individual case of hardship, relax the provisions of para 2 on such terms and conditions as may be determined."
12. A perusal of the two MLOs indicates the position to be as under:--
(1) Under MLO 34 no amenity plot can be converted into a commercial plot or residential plot.
(2) However, critical condition laid down in MLO 34 was that the condition that no construction has been made on the plot in question.
(3) Subject to the above MLO 34 cancelled allotment of all such amenity plots to any one.
(4) While MLO 34 had applicability without any condition being specified, MLO 89 related to conversion between 1-1-1972 and 4-7-1977.
(5) However, MLO 89 continued to contain condition that no construction had been made.
(6) Most importantly MLO 89 provided that it will not be applicable to any conversion in a Housing Scheme which conversion has been made prior to 1974.
13. Admittedly the plot in question is located in a Housing Scheme. It is also admitted that the allotment of the plot as a commercial plot took place on 1-11-1973 and the possession was handed over on 4-9-1974. It has also come in evidence that construction was started on the plot in question. Therefore, neither MLO 34 nor MLO 89 are applicable to the F plot in question.
14. Irrespective of the fact whether MLO 34 or MLO 89 were applicable to the plot in question or not, the position has now solidified by judgments upon judgments of this Court as well as of the honourable Supreme Court that an amenity plot can not be converted into either a commercial or a residential plot. If any authority is need in this regard, one may refer to. Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.) Karachi and 4 others, 1999 SCM R 2883. But the question here is, whether the plot in question was an amenity plot. The trial Court has clearly discussed the evidence and has come to the conclusion that the plot in question was not an amenity plot amenity plot was SNPA-72 and the plot in question was adjacent to the amenity plot.
The Appellate Court has not said a single word about this aspect of the lis before it.
15. Decree in this case was passed on 31-5-1997. Application for certified copy was filed on 5-7-1997 and Certified copy was received by the Judgment-debtor on July 5, 1997. Thereafter, within one month, appeal was filed. It was contended by the present applicant that appeal before the Appellate Court was barred by time. On the other hand, stand taken by the respondents that since July 5, 1997 was first day of opening of the Court after June vacation therefore, the entire period from 1st June 1997 to July 4, 1997 is to be excluded.
16. Under section 12 of the Limitation Act, it is provided as under:- "12. Exclusion of time in legal proceedings. ---(1) In computing the period of limitation prescribed for any . Suit, appeal or application, the day from which 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 from 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), she 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."
17. Reference may also be made to section 4 of the Limitation Act, as under:-- "4. Where Court is closed when period expires.---Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens."
18. A combined reading of sections 4 and 12 indicates the position to be as under:--
(1) As far as, closure of the Court is concerned, it is applicable only in respect of the day on which limitation expires and not in respect of the day on which limitation commences.
(2) The period to be excluded is day on which application for certified copy is to made and the day on which the copy is delivered and the time intervening between these two days, both days inclusive.
(3) Section 4 does not extend the period of limitation prescribed under law; it simply permits a suit, appeal or application to be filed on the re-opening of the Court, if the period of limitation expires on a day when the Court is closed. (Ikramullah and others v. Saad Jamal, 1980 SCMR 374).
(4) Section 4 of the Limitation Act becomes applicable only where a period of limitation is prescribed. Is there any period of limitation prescribed for filing of application for certified copy?
Obviously answer to this question is that no such period is prescribed in law. Therefore, section 4 of the Limitation Act has no applicability whatsoever in respect of filing an application for certified copy.
19. In the present case, limitation period for filing the appeal started to run on June 1st and therefore, it expired on June 30th. However since the Court was closed till July 4th, first day of the opening of the court was July 5th and appeal should have been filed on July 5. Period when the Court is closed though office of the Court remains open is excluded for the purpose of filing appeal and not for the purpose of filing application for certified copy of the judgment and decree.
Therefore, appeal before the Appellate Court below was barred by time.
20. Result of the above discussion is that this revision is allowed, judgment and decree of the Appellate Court is set aside and those of the trial Court (judgment and decree both dated 31-5- 1997) are restored.