MUHAMMAD DAUD KHAN, J.--- This common judgment shall dispose of instant C.R. No,31-B of 2007, "Akleem Khan etc. v. Govt. Of Khyber Pakhtunkhwa etc." and connected C. R. No, 43-B of 2007, "Nabi Khan etc. v. Akleem Khan etc.", as both emanating from the same impugned common judgment and decree dated 31.03.2007, passed by the learned Additional District Judge-V, Bannu, vide which appeal of the petitioners against the judgment and decree dated 31.12.2006 of learned Civil Judge- VII, Bannu, was dismissed and application for impleadment as party by Nabi Khan and others (petitioners in C.R. No,43-B of 2007) was refused.
2. Briefly stated facts of the instant Revision Petition are that petitioners/plaintiffs (hereinafter referred as petitioners) instituted a suit against the respondents/defendants (hereinafter referred as respondents) for the declaration to the effect that the petitioners along with other are "Mahazi" owners of land bearing Khasra No,7160 (Old Khasra No,3739) situated in Mouza Aspirka Bannu.
According to Aks Shajara Kishtwar for the year 1992-93 it. Is not in consonance with old Aks Shajara Kishtwar for the year 1905-06, as some portion of the land from Khasra No,7160 (old Khasra No,3739) has been included in Khasra No,7586 (Old Khasra No,5069). Due to these wrong entries in Aks Shajara Kishtwar of the year 1992-93, it is liable to correction. The petitioners also sought for issuance of perpetual injunction against the respondents/defendants.
3. On appearance the respondents/petitioners by submitting their written statement. On divergent pleadings, the learned trial court framed eight issues along with relief.
4. The parties produced their respective evidence in support of their respective stance as they wished. On conclusion of trial, after evaluating the evidence produced by the parties and hearing arguments of the learned counsel for the parties, the suit of the petitioners was dismissed by the learned trial court vide its judgment and decree dated 23.12.2006.
5. Aggrieved from the judgment and decree of the trial court, the petitioners preferred an appeal before District Appellate Court on 17.02.2007. An application under section 5 of the Limitation Act, 1908, seeking con donation of delay for one day, explanation and reasons mentioned therein was also put in court by the petitioners along with appeal, supported by an affidavit, sworn by petitioners, During pendency of appeal, Nabi Khan and others, (petitioners in C.R. No, 43-B of 2007) filed an application for implemented being necessary party. The learned Appellate Court by taking the view that appeal filed by the petitioners (in C.R. No,31/2007) is barred by limitation for more than eight days and in absence of any explanation and sufficient cause, dismissed the appeal and application of petitioners (in C.R. No,43-B/2007), vide impugned judgment dated 31.03.2007, hence, both the revision petitions.
6. Syed Abid Hussain Shah Bukhari, learned counsel for the petitioners/ appellants in (C.R. No,31-B of 2007) though controverted both the judgment and decrees of subordinate courts on merits.
' The focus of his main criticism are the judgment and decree of the learned Appellate Court vide which the petitioners' appeal was declared non-maintainable on the basis of barred by limitation.
The learned counsel for the petitioners contended that findings of the Appellate Court that appeal filed by the petitioners was barred by 8 days is grossly erroneous and against facts. He further contended that the petitioner shall not be penalized and divested of their vested legal rights for an inadvertent and bona fide mistake on the part of counsel occasioned by one day.
7. Muhammad Usman Khan learned counsel for petitioners (in C.R. No,43-B/ 2007) argued that they are contiguous owners of the suit land and their valuable rights are involved, hence, they are necessary party and liable to be impleaded, so that they may protect their rights, but learned appellate Court, without any rhyme and reason dismissed their application.
8. On the other side Mr. Abdur Rashid Khan Marwat, learned counsel for the respondents opposed the contention of the learned counsel for the petitioners contended that the appeal filed by the petitioners has not explained the delay for filing the appeal and is liable to be dismissed. He supported the decision of the learned Appellate Court.
9. Mr. Qudrat Ullah Khan Gandapur Asstt: A.G for the Government of Khyber Pakhtunkhwa supported the arguments of the learned counsel for the respondents.
10. Arguments heard and learned counsel for the parties took me through the record.
11. I have considered the submissions of the learned counsel for the 'Parties and from the perusal of record it has been found that on 23.12.2006 (the day on which impugned judgment of the trial court announced) was the last working day and on the following day winter vacations commenced and all the civil courts stand closed from 24.12.2006 to 01.01.2007; Besides the courts were also closed for Eid from 01.01.2007 to 03.01.2007 and opened on 04.01.2007. No sooner the courts were opened the petitioners/appellants on the 'same day had applied for obtaining certified copies of the judgment and decree which were delivered to the petitioners on 17.01.2007. As according to petitioners the last date for filing the appeal was 16.02.2007, and it was Friday and court was closed when the petitioner arrived in the court at 12.15 p.m., therefore, the instant appeal was filed on the next date i,e, on 17.02.2007 along with the said application for condonation of delay.
12. From the perusal of judgment of learned Appellate Court, it appears that in calculating the time by the learned Appellate Court the time of winter vacations from 24.12.2006 to 31.12.2006 was included and held that appellants could have filed application for copying the documents on the day of announcement of judgment i,e, 23.12.2006 or even during winter vacations. The learned Appellate Court was of the view that the copying department was opened and working during winter vacations.
13. I have considered the submissions of the learned counsel on this point and have found that on 23.12.2006 when the impugned judgment of learned Court announced, it was last working day and on the following day winter vacations commenced and civil courts were closed from 24.12.2006 to 01.01.2007. The attested copy of the notification by the Worthy High Court under section 25 of the West Pakistan Civil Courts Ordinance, 1962, transpires that during summer vacations, civil courts as well as its other agencies including copying section were also closed and same was the position for the holidays of Eid from 01.01.2007 to 03.01.2007 and the court opened on 04.01.2007, when the petitioners/ appellants had applied for obtaining copies of the judgment and decree, which were delivered to the appellants on 17.01.2007. Though the last date for filing the instant appeal would expire on 16.02.2007 yet according to appellant when he reached the court to file appeal, it was 12.15 p.m. And the court was closed for Friday prayer and Friday is half working day and they could not file the appeal on this day, therefore, the same was filed on the next date i,e, 17.02.2007 along with the application under section 5 of the Limitation Act. The first view taken by the Appellate Court that the appellants could have applied for copy on the date of announcement of judgment is against the statutory law, which provide exclusion of the day of announcement of the judgment and order under section 12 of the Limitation Act. For convenience to understand the law, the section 12 of Part III of the Limitation Act is reproduced as under:-- PART III COMPUTATION OF PERIOD OF LIMITATION
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) ....................................................
(4) ....................................................
(5) For the purpose of subsections (2), (3) and (4), the 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.]"
The above section reveals that the day of announcement of judgment and the time required for obtaining copy shall be excluded for filing the appeal and this exemption is provided by the statute, which could not be snatched, because it is fundamental right given under Article 4 of the Constitution; that "to enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen" and this right has to be enforced by the court in the discharge of judicial function. Reliance may be placed on case titled"Watan Party and another v. Federation of Pakistan and others" (PLD 2011 SC 997).
14. The view taken by the learned Appellate Court that the appeal is time barred and application for condonation of delay is unexplained and without sufficient cause is the result of highly misconception of facts as well as law and thus the judgment of the Appellate Court is utterly not only against the statutory provisions of law provided in the Limitation Act, but also against fundamental right given in the Constitution.
15. In my opinion when such question for determining the crucial time for limitation has been set out, the learned Appellate Court was not supposed to disbelieve explanation, given by the appellants for delay, without examining record of the copying department of the court. I fortify my this view in case titled "Muhammad Hussain v. Fateh Muhammad and others" (1991 CLC 704).
16. For my own satisfaction, I summoned the record keeper of the concerned court along with relevant record and documents, who produced the relevant register and documents which reveals that all the civil courts and its record room were closed from 24.12.2006 to 01.01.2007 and the notification under section 25 of the West Pakistan Civil Court Ordinance, 1962 from the worthy High Court was also perused which supports the above facts of closing the courts in toto during that winter vacations/ holidays and were opened on 04.01.2007. The appellants were entitled for excluding the said days under the law. Even otherwise, if copying office remained open, yet office cannot be equated with Court. It is also settled law that the notification for working of office cannot be equated with statutory right, which conferred by section 4 of the Limitation Act. The Hon'ble Supreme Court of Pakistan in case "Fazal Karim and another v. Ghulam Jilani and others" (1975 SCM R 452), held that:-- "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 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 reopening of the Court and was, therefore, well within time. "
17. The other important fact of the instant case was that according to petitioners after excluding the time of obtaining the copy, the 30 days would expire on 16.02.2007 on Friday and according to the petitioner/appellant" when he reached the office/court at 12.15 noon, on the said date the court business had been closed by then because of Friday/half working day and the instant delay is inadvertently, not-deliberate, bona fide and due to half working day. The delay was beyond his control even if it is held that petitioners appeal was barred then it was actually barred by one day only and the prescribed time was expired on Friday, this delay could have been condoned under section 5 of the Limitation Act, which admittedly applies to such con donation. The Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Amir v. Khan Bahadar and another" reported in (PLD 1996 SC 267), wherein ground for con donation was that on the last day of limitation, it was 3rd day of Ramzan and time for filing had been reduced from 3.30 p.m. To 1.30. p.m. During the month of Ramzan. Appellant being unaware of such reduction when presented appeal on the last day of limitation at 2.30 p.m., Court official did not receive the same on the pretext of change of time in presentation of appeal etc. Appellant, thus presented appeal on the next day whereby one day's delay was caused. It was held that presentation of appeal by appellant before expiry of last date of limitation was valid presentation and Court official was not justified in declining to accept the same. Non presentation of appeal on the last date of limitation was thus, for reason beyond control of appellant. One day's delay in filing appeal was condoned.
' The Hon'ble Supreme Court in other case title Sana Ullah v. Rashid Ahmad Khokhar and 3 others reported in 2000 SCM R 937 condoned one day delay, wherein it has been held that:-- "As on merits of the case we are satisfied that the order impugned before us was not sustainable, the grounds of con donation of delay also appeared to be reasonable and the delay is only one day, therefore, we condone the delay and would decide the appeal on merits. "
18. It is true the laws of Limitation, in one sense, are objective when strictly construed, so as to lead to disastrous results, destroying valuable vested rights, for fault or negligence of a party may result in negation of the object. The Legislature wisely laid down exceptions in suitable cases. Provisions of section 5 of the Limitation Act, 1908 are one of those exemptions. The rule of interpretation is that exemptions are construed liberally to advance the cause of substantial justice. The section contemplates and gives wide discretion in construing what is 'sufficient cause'. The imperative restriction is that the discretion has to be exercised judicially and not in arbitrary or capricious manner. The Supreme Court of India in a case titled "Ram Lal and others v. Rewa Ltd." reported in (AIR 1962 SC 361) has observed as under:- "In construing section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. When the period of limitation prescribed is expired, the decree-holder obtains a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right should not be light heatedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. "
' The Hon'ble Supreme Court of Pakistan in the case titled "Mst. Begum and others v. Mst. Begum Kaneez Fatima Hayat and others" (1989 SCM R 883), wherein it has been held:-- "sufficient cause" for the purpose of proceeding was not susceptible of any exact hard and fast rule could be laid down and party should not be deprived of from a fair trial on merit, except when there is positive evidence of negligence beyond explanation.
19. In the instant case, one day delay was explained and sufficient cause was mentioned through affidavit by the petitioner, but is, there is no counter affidavit, a point to be considered by the court.
20. In absence of negligence, inaction or want of bona-fide imputable to petitioner, word "sufficient cause" must receive liberal construction so as to advance the cause of substantial justice.
21. In the light of above observation, the findings of the learned Appellate Court is the result of misconception of law, facts and not sustainable and hereby set aside. Both the revision petitions are sent back to the Appellate Court for hearing the parties and to decide the case according to law.