ABDUL HAYEE KURESHI, J.-On the conclusion of the hearing of this appeal we had by a short order allowed the same with costs and the reasozns for such short order presently follows :-
2. The present appeal under clause (10) of the Letters Patent has been filed by Mst. Aisha Bai and others to challenge the order of the learned Single Judge dated 18-1-1972 in Execution Application No. 89/70, whereby the application for execution of the decree in this case was dismissed on the ground of bar by limitation. The appeal has been resisted by respondent Mian Abdul Hussain.
3. We have heard Mr. Jan Muhammad Dawood for the appellant and Mr. Amir Ahmed Khan for the respondent.
4. On 19-2-1976, the appellants were awarded decree in Suit No. 56/1962 by the learned Single Judge exercising jurisdiction on the original side. The decree was for specific performance of a contract in respect of sale of immovable property. The execution application was filed after 3 years of the decree but within 6 years of the same. On behalf of the respondent/ defendant a plea was raised that the application was barred by time. Reliance was placed on two judgments of the Karachi Bench of the erstwhile High Court of West Pakistan. The said judgments are Firdous Trading Corpora--petition and others v. Japan Cotton and General Trading Company Limited (1) and Mst.
Faizan v. Pakistan (2). It was contended on behalf of the respondent that Article 183 in the Limitation Act was not applicable. Before us an additional contention has been raised on behalf of the respondent that the present appeal is also barred by limitation.
5. We will first consider the question in regard to maintainability of this appeal. The learned Single Judge had passed the impugned order on 18-i-1972 and the appellant made an application for grant of copy on 26-1-1972. Fees were estimated on 5-2-1972 and copy was prepared on 8-2-1972.
Although the stamp was supplied on 11-2-1972 the copy was delivered on 16-2-1972. The appeal was however filed on 28-2-1972. Mr. Amir Ahmed Khan appearing for the respondent has contended that the copy was ready on 8-2-1972 and even stamp was supplied on 11-2-1972 so that if the appellants obtained delivery of the copy on 16-2-1972, viz. 5 days after the stamp was supplied such 5 days cannot be included in "time requisite" for obtaining copies. He has relied upon the case of Syed Jalilur Rahman v. Mst. Rashida Begun (3) and particularly pointed out the following passage appearing in the judgment of the learned Single Judge :- "This is the period which the appellant has himself chosen to lose. The observations in Fateh Muhammad v. Kadir Bux 1975 SCMR 157 are apt in this record where it has been held that the time requisite for obtaining the copy of an order within section 12 of Limitation Act means only the interval between the date of application for supply of copy and the date when it is ready for delivery. 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 time "requisite" for obtaining the copy." It has also been observed in this authority that even during the period which is covered by section 12 of the Limitation Act due diligence on the part of the litigant is required by law."
(1) PLD 1961 Kar. 565(2) PLD 1970 Kar. 362
(3) PLD 1976 Kar. 105
6. The proposition in this case appears to have been based on the obser--vation of the Supreme Court in the case of Fateh Muhammad and others v. Malik Qadir Bakhsh (1). It reads as follows :- "It is well settled that 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."
7. In this case, reliance was placed on two judgments of Privy Council, namely, Prematha Nath Roy Y. Lae v. T. S. Chattiar (2). The Judicial Committee in these two cases appeared to have stated a principle that no period can be recorded as "requisite under the Act, which need not have lapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order." Even their Lordships of the Supreme Court in the case of Fateh Muhammad had observed that "due deligence on the part of the litigant is required by law, and no delay, unless such as was caused by a circumstance over the litigant had no control and which could not by due diligence be avoided, can form part of the time "requisite" for obtaining the copy."
8. On a consideration of the above case it would seem that the guiding principle for determining "time requisite" for obtaining the copy is that if the delay in obtaining the copy was caused by circumstances over A which the litigant had no control the same has to be included in the time required for obtaining the copy. After the copy is ready and stamp is supplied some steps on the ministerial side of the Court have to be taken in its certification which has to follow the affixing of stamp and cancellation of the same. The appellant had supplied the stamps but thereafter certification does take some time. In fact the copy has to be certified by the Superin--tendent or Officer in the concerned Branch which is different from the copying Branch. Thereafter, a notice needs to be given to the party informing him that the copy is ready. The rules on the Original Side of this Court make no provision for the giving of such notice but rules 134 and 135 on the Appellate Side provide for notice to the party seeking the copy at least by pasting information on the Notice Board that the copy was ready or would be available on a particular date. Such rules had not been followed. We had called the Superintendent of the Copying Branch and asked him if notice had been given in regard to the copy being ready to the appellant directly or by pasting the notice on the Notice Board and he stated that none of these two courses has been followed.
9. On the other hand, Mr. Jan Muhammad Dawood, the learned Advocate for the appellant, has made a reference to the Supreme Court judgment in the case of W. P. L D. C., Karachi v. Aziz Qureshi (3). In this case, which is earlier in point of time than the case of Fateh Muhammad v. Malik Qadir Bakhsh, the Supreme Court had taken the view that if by reason of carelessness of theoffice in giving no information in regard to the copy being ready then time can be further extended if further delay takes place in obtaining the copy. In this case, the Sind Chief Court Rules were taken note of by the Supreme Court and the following observation was made:
(1) 1975 SCMR 157(2) AIR 1928 P C 123
(3) 1973, _ SCMR 555 "In the case under report it has been held that the time `requisite' for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all. In any event, in my opinion, the delay has been satisfactorily explained .And I would, accordingly condone the delay."
10. In the present case, admittedly no information was given to the appellant about the copy being ready for delivery and therefore, the time B "requisite" for obtaining the copy would be started from the date on which application for copy was made and end on the date when the copy was actually delivered. The appeal is therefore, in time.
11. The next question is in regard to limitation for making an application for execution. Article 183 of the Limitation Act would apply in cases where the execution application is made for enforcement of a judgment or decree of any High Court in the exercise of its ordinary original civil jurisdiction; The time provided is 6 years. In case, the learned Single Judge was exercising jurisdiction on the ordinary Original Civil Side of the High Court this Article will be manifestly applicable. The learned Single Judge relied on the cases of Firdous Trading Corporation v. Japan Cotton and General Trading Company (1) and Mst. Faizan v. Pakistan (2). Both these decisions are by different Single Judges of the Karachi Bench of the erstwhile High Court of West Pakistan. The view was taken in these two cases that the High Court does not exercise ordinary original civil jurisdiction. However, in a later case of Haji Razzak v. Usman and 9 others (3), a Division Bench of Dorab Patel and Jamaluddin H. Ahmad, JJ. Came to the contrary conclusion and held that the case of Firdous Trading 'Corporation was not correctly decided. In paragraph 34 of the judgment at page 963 of the report it was stated that) Letters Patent Appeals arising out of judgments in suits filed on the ordinary original Side of the Court are judgments passed in the exercise of this Court's ordinary original civil jurisdiction. This judgment of the Division Bench was passed on 2-7-1975, viz. After the impugned order which is the subject--matter of this appeal. We are in respectful agreement with the process of reasoning adopted by the learned Judges of the Division Bench and we follow the same.
12. In the result, Article 183 of the Limitation Act was applicable to the,,execution. Application in this case.
13. As a result of the above discussion we reverse the order of the learned Single Judge and the Execution Application shall be deemed to be pending which the learned Single Judge shall now dispose of.
(1) PLD 1961 Kar. 565(2) PLD 1970 Kar. 362
(3) PLD 1975 Kar. 944