1. ' The short point of limitation, which is involved in the matter has been taken into consideration in the first place before going any further in the matter on merits by consent of the parties.
2. ' The essential facts of the case are that the respondent No, 1 filed Suit No,584 of 1999, against the appellants and Government of Sindh, the respondent No,2, praying for specific performance in respect of the industrial plots bearing No, ST-4A and ST-4/6, situated in Paposh Nagar, Block.
3. 5.A, Nazimabad, Karachi. The suit was respectively based on the offer and acceptance, and payment of the requisite amount against a sale transaction of the said plots, respectively struck between the parties, through the, process of an open public auction held in the year 1998. The learned trial court tried the suit and on the basis of the issues (based on the respective pleadings of the parties), and that of their respective evidence led there against, decreed the same by its short order dated 3-2-2009, which later stood followed by the reasons recorded on 21-2-2009 and decree drawn there against on the said date but signed on 11-4-2009. The appellant preferred this appeal against the said findings on 8-5-2009 together with an application under section 5 of the Limitation Act for condonation of delay if any, found in the matter.
4. ' The learned counsel for the appellant states that the application has been filed on the part of the appellant under section 5 of the Limitation Act for condonation of the delay, if any, found by the court in the matter, which may be granted on considering the facts mentioned in the accompanying affidavit thereof, which includes that the learned counsel appearing for the appellant, had left the job without any intimation to the appellant about the short order passed by the learned single Judge on 3-2-2009 and therefore, the required information with regard to such findings, came into the knowledge of the appellant belatedly, and hence, such being not mala fide and due to no error of the learned counsel for the appellant, and owing to no wilful fault of the appellant, is ignorable in the interest of justice. The learned counsel for the appellant also contended that apparently, the appeal is well in time, from the calculation, which he has made in the matter from date of obtaining the copy of the relevant record i,e, judgment and decree, to the filing of the appeal there against, yet if any delay is observed by this court, the same may be condoned under section 5 of the Limitation Act in the light of the facts indicated above.
5. ' The other side counter argued that no sufficient reason has been given by the learned counsel for the appellant and the affidavit filed in support of the application of section 5 of the Limitation Act, carries no sufficient cause or valid explanation for condonation of the delay, which according to the learned counsel has taken place in the matter inordinately. According to him, the appeal was to be preferred within 20 days' period of limitation provided by the law of Limitation, from 3-2-2009 the date of short order the copy of which was applied on 14-2-2009 i,e, after lapse of 11 days (from 14-2-2009); the copies of the same and that of the reasons recorded on 21-2-2009 and decree drawn there against on the same clay, were delivered to the appellant on 22-4-2009; while the appeal was filed on 8-5-2009 i,e, after a lapse of 16 days (from 22-4-2009), and ultimately, as per the assessm ent worked out as follows: 11 days + 16 days - 20 days = 7 days, it appears that the appeal is barred by time and has been filed after expiration of 20 days even after the exclusion of the period of time legally required to be excluded in favour of the appellant in that regard, as per law.
6. ' We have heard the learned counsel for the parties on such point and perused the record as well as law concerned.
7. It is an admitted position that the short order was passed on 3-2-2009. The learned counsel for the appellant appeared in the matter as fresh counsel and moved an application on 14-2-2009 for certified copies of the judgment and decree, and the reasons for the short order were recorded on 21-2-2009 while the decree was drawn on the same day, but signed on 11-4-2009 and similarly, the copying branch has given the detail to the following effect:--
(i) Application for copy is made on 14-2-2009.
(ii) Fee estimated for such purpose on 15-4-2009
(iii) Estimated fee is deposited on 15-4-2009.
(iv) Copy made ready on 22-4-2009.
8. ' The limitation period for High Court Appeal (also known as Intra Court Appeal), previously used to be called as Letters Patent Appeal, in terms of the High Court Rules and Orders (Lahore), is covered by the Article 151 of the Limitation Act, which provides 20 days as limitation period for filing the appeal against final order or decree of a single Judge of the High Court, and such appeal is to lie before a Bench of such High Court, consisting of two or more Judges as is the case over here, in terms of section 3(1) of the Law Reforms Ordinance, 1972, which runs as follows:-- "3(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction."
9. ' It would not be out of place to mention here that section 3(3) of the said Ordinance bars an appeal against an interlocutory order, i,e, an order not of decisive nature, but the same is overridden by the provisions of section 15 of the Ordinance No, X of 1980 (Code of Civil Procedure (Amendment) Ordinance, 1980), which is with regard to the interlocutory order. The same runs:-- "Appeal to High Court in certain cases.---Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a single Judge of that Court in the exercise of its original civil jurisdiction."
10. We are of the considered view that an appeal lies against the decree, and the period preceding issuance of the same or the period of time consumed in obtaining the certified copy of the material on which the same is founded, shall be excluded as a matter, of law, as is provided in subsection 3 of section 12 of the Limitation Act, which is applicable in the matter very much.
11. Reliance is placed on the case of Aftab Alam Khan v. The Settlement Commissioner and 3 others reported. As PLD 1972 Quetta 97 vide paragraph-9 of the judgment thereof, which runs:-- "In this case the learned judges reversed an earlier decision of the High Court of West Pakistan in the case of Abdul Karim v. Shaikh Muhammad (1) where a contrary view had been taken. In fact Rule 4 in Chapter 1-A, Volume-V of the High Court Rules and Orders (Lahore) clearly provides that in computation of period of Limitation in Letters Patent Appeal time for obtaining copies has to be excluded in accordance with section 12 of the Limitation Act. In this case a certified copy of the judgment of the learned single Judge was produced along with the appeal and there appears to be no justification for not allowing time consumed for obtaining copies. Excluding the period of 11 days spent on obtaining copy of the judgment, we held that' this appeal is in time."
12. ' The Division Bench of this court in the case of Messrs Emirates Air Lines v. Dr. Prof. Haroon Ahmed and 3 others reported as PLD 2006 Karachi 126 has dealt with the identical issue (of limitation) and has set a rule that supports the views expressed above. The relevant head note of the impugned judgment is incorporated as follows:-- "---S. 12---Period of limitation---Computation---Time starts to run from the date of preparation of decree and till the copy delivered has to be excluded, while computing the period for filing appeal."
13. ' The rule 262 of the Sindh Chief Court Rules (O.S.) runs:-- "262. Date of signing decree to be also endorsed. The Judge when signing the decree shall write below his signature also the date, month and year on which the decree is actually signed by him."
14. The said provision of law indicates that the date of signing the decree will be the date to be taken into consideration as date of decree for the purpose of computation of limitation period. In the instant case, the decree is signed on 11-4-2009 and therefore, the date of decree is 11-4-2009 for such purpose.
15. ' The case-law i,e, PLD 2006 Karachi 126, supports such views, too.
16. In the instant case, as highlighted above, there appears no delay caused on the part of the appellant in obtaining the copy of the decree, as the cost was estimated and the same was paid on the same day, and the intervening period preceding the decree being ready for being delivered, is to be excluded from computation as limitation against the appellant. The same was delivered to the appellant on 22-4-2009 and therefore, the period of limitation of said 20 days to file the appeal, runs from 22-4-2009, and since the appeal has been filed on 8-5-2009 i,e, within 17 days viz. Three days earlier to the expiration of the time limit referred to above, the appeal is well in time, and the contention of the learned counsel for the respondent that the same is time barred, is based on misconception and similarly, the application under section 5 of the Limitation Act, is an outcome of appellant's failure of examining the concerned law in its proper perspective.
17. ' The application stands disposed of in the above terms.