' MIAN SAQIB NISAR, J.---The legal proposition involved in this appeal with leave of the Court is that:-whether an (civil) appeal, which has crossed the prescribed period of limitation when it was filed in. The District Court, while the said Court was closed on account of summer vacation, shall be barred by time, and the appellant (in the District Court) shall not be entitled to the benefit of the provisions of Section 4 of the Limitation Act, 1908? In the above context, the facts of the case are; that a judgment and decree was passed by the Trial Court ,in favour of the respondents and against the appellants on 6.6.1991. The latter applied for the certified copy of the above (judgment and decree) on 15.6.1991, which was prepared on 17.7.1991 and delivered to the appellant on 20.7.1991. Calculating the prescribed period of limitation of 30 days available to the appellant for filing of the appeal from the date of delivery of the copy and by excluding the time spent in obtaining the copy (note: if the time from the date of preparation of the copy and the delivery is not excluded; because the time would ordinarily reckon from the date of delivery, and there is nothing on the record as to what date was given by the copying agency to the appellant for the purposes of delivery), the period of limitation shall seemingly expire on 9.8.1991. However, the appeal was filed by the appellant before the District Judge, Gujrat on 10.8.1991 and therefore it was questioned by the respondents to be beyond limitation. But as mentioned earlier this institution admittedly was during the summer vacation of the District/Civil Courts.
2. When the appeal came up for hearing before the learned Appellate Court, the same was dismissed on 17.5.2000 holding it to be barred by time, on the reasoning that no, application for condonation of delay was filed by the appellant alongwith the appeal at the time of its institution, rather the application moved subsequently in this regard was after a lapse of considerable period of time (around 09 years) and this has reflection on the conduct of the appellant vis-a-vis the lack of establishing a "sufficient cause" entitling it (the appellant) for the condonation of the delay. The appellant being aggrieved of the -verdict, invoked the revisional jurisdiction of the High Court, but failed through the impugned judgment dated 27.3.2004. Hence this appeal.
3. Heard. In order to attend to and resolve the legal proposition highlighted above, we feel expedient to reproduce the provisions of Section 4 of the Limitation Act, 1908 which read 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 dosed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens."
From the unambiguous language of section ibid, there can be no doubt that a statutory right has been conferred upon a litigant, to the effect that if the period prescribed for a suit, an appeal, or an application expires on a date/day which falls during the period or the day when the Court is dosed, the said case/matter may be instituted/preferred by the concerned litigant on the day when the Court re-opens. It may be emphasized here that the afore-mentioned right by stretch of any legal interpretation of the law ibid cannot be construed as a grace in any manner whatsoever; rather it is a right conferred by law and thus for all intents and purposes is a `vested right' as is known to our jurisprudence. It, is settled law that such vested right should in letter and spirit be enforced at all cost, except where it is unenforceable on account of any specific legal bar or it stands obliterated or taken away by or under the law. Be that as it may, there is no cavil qua the factual and legal aspect of the matter, that during the summer vacation, the District/Civil Courts are/were closed in Punjab. We have also verified the above position from the record of the Lahore High Court (through Registrar office of the Supreme Court) that during such period (summer vacation, particularly the relevant period) the District Courts were closed for all regular work with the exception of a duty Judge(s) who functions to attend only to urgent work/matters. Thus the requisite question (as also mentioned above) which arises in the above scenario is:- that if a litigant who files an appeal etc. During the closure of. The Courts (on account of summer vacation), but on the day/date of such institution the prescribed period of limitation has passed out, whether the appeal can be held/said to be barred by time and therefore should be dismissed on this account and the right under Section 4 ibid which otherwise is available to a litigant shall be unavailable. In support of his contention that in the facts and circumstances of the present case the benefit of the said section shall be available to the appellant, the learned counsel for the appellant has cited before us the judgments of this Court reported as Lehar Khan and others v. Amir Hamza and others (1999 SCMR 108), Ikramullah and others v. Said Jamal (1980 SCMR 375), Siraj Ahmed and others v. Province of Sindh and others (2001 SCMR 1459), and Fazal Karim and another v. Ghulam Jillani and others (1975 SCMR 452). Conversely, learned counsel for the respondents has placed reliance upon the judgments Ch. Fayyaz Ahmed v. Mst. Hidayat Begum and 21 others (1997 SCMR 1393) and Fateh Ali Khan v. Subedar Muhammad Khan (1970 SCM R 238) to submit that in such a situation, Section 4 shall not be attracted and the appeal shall be therefore barred by time.
4. According to the law laid down in Fazal Karim's case (which was an appeal) the facts whereof have some nexus to the proposition in hand, this Court has elucidated the import .And object of Section 4 ibid in the following terms:--- "Having carefully considered the contentions raised by the counsel, for the parties, we are convinced that the view taken by the learned Judge of the High Court was unexceptionable. From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision. Even otherwise, we find that there is no conflict between the notification and the provision contained in section 4 of the Limitation Act. According to the notification, the Office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word "Office" as used in the notification is not synonymous with "Court" as used in section. 4 of the Limitation Act. The synonymous Court may be closed and yet the office might still be open. Even otherwise, the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right. Even otherwise, it is doubtful that the word "Petition" as used in the notification will cover a memorandum of appeal. I am therefore, clearly of the view that the appeal even though filed during the vacation could be filed on the re- opening of the Court and was, therefore, well within time "(emphasis supplied by us).
' Though in the leave refusing order of this Court passed in Ch. Fayyaz Ahmed's case (Supra) a different view has been expressed, but to our mind due to lack of proper assistance of the bar such enunciation on the subject is not apt; mainly for two reasons firstly, that the matter pertained to the institution of a case before the High Court and not the District Court; secondly, it was wrongly perceived in the said opinion that during the long summer vacation the Lahore High Court registry is open for the institution of ordinary cases. However, as verified from the Registrar office of the Lahore High Court the position is otherwise as, during the summer vacation the registry of the High Court is closed for regular/ordinary institution and only urgent specified matters are entertained and set out for hearing. In this behalf the latest office order/notification dated 25.6.2014 is reproduced (note: we are apprised that all previous notifications on the subject are fundamentally alike):--- "OFFICE ORDER 'During summer vacation w.e.f, 01.07.2014 to 06.09.2014, only following categories of Urgent Cases shall be entertained by the High Court:---
(i) Habeas Corpus Petitions or detention matters.
(ii) Bail Applications.
(iii) Petitions seeking injunction/stay orders involving imminent threat of irreparable loss.
(iv) Petitions for the Quashment of FIR.
(v) Petitions against the order of 22(A) and 22 (B), Cr. P. C.
(vi) Application(s) for the Cancellation of Bails.
(vii) Petitions seeking direction against the public functionaries.
(viii)Suspension of sentence application(s).
(ix) Any other matter of genuine urgency with the approval of the Chief Justice/Senior Vacation Judge at the Principal Seat and the Senior Vacation Judge at the Benches.
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7. The registry will remain closed for all other cases. Benefit of Section 4 of the Limitation Act will, however, be available in such cases.
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' BY ORDER OF THE HON'BLE CHIEF JUSTICE (MUHAMMAD NASIR)
Additional Registrar (Judicial)
Dated: 25.06.20I4"
' Therefore, in view of the above position the noted judgment (Fayyaz's case) is not much helpful for resolving the proposition. Besides, the noted decision is only a leave refusing order and according to Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCM R 314) such order is not the enunciation of law which should be taken into consideration for the purposes of resolving the instant proposition. As regard Fateh Ali Khan's case (Supra) cited by the respondents side, the question about the application of Section 4 ibid was considered in the context of the Supreme Court Registry remaining open during the summer vacation or otherwise and it was rightly held "Secondly, this contention is devoid of all force because though this Court was in vacation it cannot be said to be closed because its Registries were open for receiving the petitions and other work. Section 4 could only be applied in case there was no arrangement for doing the business of the Court during the vacation. Since this Court was open for receiving petitions and for doing other work, section 4 of the Limitation Act has no application". Moreover, this case like Ch. Fayyaz's case (Supra) was again a leave refusing order and therefore cannot be held to be an enunciation of law.
5. Be that as it may, analyzing the proposition as set out at the very inception of this opinion, independent of the above-referred case-law, there is no factual and legal doubt and controversy that during the summer vacations of 1991 the District Courts were closed both for the purposes of institution and hearing of ordinary cases and the routine work. In this context the order of District and Sessions Judge Gujrat dated 1.7.1991 is relevant and reads as "The Courts of AD&SJs shall remain closed during the summer vacation w.e.f, 24.7.1991 to 8.9.1991. As I will be on Summer Vacation for the period from 13.8.1991 to 2.9.1991, I Mian Jahangir, District & Sessions Judge, Gujrat, in exercise of the powers conferred upon me under section 22 of the Civil Courts Ordinance, 1962 and section 17(4) of the Cr. P.C. Hereby authorise the following officers to act as duty Judge with dates mentioned against each to entertain and dispose of emergent nature of Civil and Criminal petitions in which an application for stay has been moved including Bail applications to sign dak such as warrants and to grant casual leave upto 4 days to my staff during the period of Summer Vacation". Not only that, as per, the yearly calendar of the Lahore High Court for 1991 it is specifically mentioned "The Summer Vacation of the Civil Courts subordinate to the Lahore High Court shall be from 1st August to 31st August, 1991, except at Murree BY ORDER OF THE CHIEF JUSTICE AND JUDGES REGISTRAR". Therefore on account of the above order /calendar and the provisions of Section 4 ibid a litigant whose period of limitation for a matter shall expire during the summer vacation when the Courts are closed has a statutory (a vested) right to file his appeal etc. On the re-opening of the Court. Section 4 ibid is very clear in this behalf and permits no ambiguity and doubt. So such litigant shall be well within his right and shall be absolutely safe to wait till the re-opening of the Court, though limitation of his case/cause shall expire during the period when the Court is closed.
The situation highlighted above not only is meant to secure the right ibid, but it also gives rise to a reasonable and legitimate expectation to a litigant for the exercise of the right on the re-opening by awaiting till that date. However a condition may emerge that during the period while the Courts are still closed and the limitation has expired in between that period, on account of some acute urgency a litigant may be compelled and forced to file a suit/appeal for enabling him to ask for and seek some interim relief; i.e, in the nature of temporary injunction; stay order; an order to prevent the execution of; order against decree; dispossession from the suit property; warrants of arrest; attachment of property; appointment of receiver; appointment of commission etc. In the matter; which interim relief is imperative and of utmost expediency and if not asked for and obtained shall cause him (the litigant) an irreparable, irreversible loss and injury. Thus in the above scenario where a litigant though has the right to file the suit/appeal etc. on the re-opening of the Court (under Section 4 ibid) but for compelling reasons as mentioned in the preceding part is obliged to file the lis during the summer vacation, whether his afore-stated right, which is statutory and vested, shall be obliterated, destroyed or in other words whether he shall be deprived and divested of the right on account of such institution in the circumstances? The answer is in the negative. As it shall not only stultify his right to approach the Court on its re-opening, rather it shall not be lawful to conceive that the said right in the given circumstances would extinguish.
Furthermore this shall also be against the rule of reasonable and legitimate expectation as highlighted earlier. It shall also be ludicrous to conceive the legislative intent behind Section 4 to the effect, in that, expecting a litigant to sit idle, and watch colossal, irreparable and irretrievable loss being caused to him in the first place and to refrain himself from securing and exercising his right of appeal for the purpose of obtaining interim relief, only with the object of saving himself from the bar of limitation and protecting his right of limitation as per Section 4 ibid. In the given situation when the District Courts were/are admittedly closed for ordinary and routine work, and only urgent matters are entertained and allowed hearing by the duty Judge(s), and the urgency is pressed by the litigant to approach the Court for securing some. Interim relief, it shall for all intents and purposes be deemed that the suit/appeal has been filed on the date of the re-opening of the Court, and the bar of limitation shall not attract to such case, rather the benefit of Section 4 shall automatically extend to such litigant. This resolution of the proposition in hand is duly and aptly applicable to the case of the appellant.
6. In light of the above, we hold that in the facts and circumstances of the present case, the appeal of the appellant before the learned ADJ Gujrat was within time. Therefore by allowing this appeal the impugned judgment of the learned High Court and also that of the learned first Appellate Court, dismissing the first appeal of the appellant as time-barred, are set aside and the matter is remanded to the reamed District Judge, Gujrat for decision of the case on merits.
High Court. Judgment Set Aside/Case Remanded.