AAMER FAROOQ, J.---At the very outset, learned counsel for respondents Nos,1 and 3 objected that the instant appeal is barred by limitation and is liable to be dismissed.
2. Learned counsel for respondent No,1 inter alia, submitted that the impugned judgment was passed on 7.3.2016 and instant appeal was to be filed by or. before 27.3.2016 i,e, within the period of twenty days from passing of the judgement; whereas the appeal was filed on 28.3.2016 after delay of a day. It was further contended that no application for condonation of delay was filed along with the appeal; that the appeal was not competent inasmuch as it was filed without the power of attorney and office raised certain objections which were to be removed within a certain time frame but needful was not done and appeal was re-filed on 5.4.2016. Learned counsel in support of his contentions placed reliance on cases titled Ministry of Defence and others v. Muhammad Athar (2013 MLD 1284), Ashiq Hussain Sabri v. Secretary Health, Government of the Punjab and others (PLD 2011 Lahore 490).
3. Learned counsel for the appellant submitted that the appeal is within the period of limitation. In this behalf it was contended that the impugned judgement was passed on 7.3.2016 and appellant applied for the certified copy of the same on 8.3.2016 which was prepared on 10.3.2016 and the appeal was initially filed in the office of this court on 28.3.2016. The office raised certain objections upon which the memorandum of appeal was withdrawn and was re-filed on 5.4.2016. Learned counsel further contended that it is trite law that the appeal once is submitted within the prescribed period of limitation it cannot be treated as barred by limitation for the reason that office has raised objections and the same are not removed within the period provided. In support of his contentions learned counsel placed reliance on case titled Farman Ali v. Muhammad Ishaq and others (PLD 2013 SC 392), Shazia Munawar v. Punjab Public Service Commission, Lahore (PLD 2010 Lahore 160), Muhammad Boota v. Basharat Ali (PLD 2014 Lahore 1), National Bank of Pakistan v.
Khalid Javed Qureshi and others (PLD 2013 Lahore 269), Province of Punjab and others v. Abdul Ghani and others (2016 MLD 988), Aftab Alam Khan v. The Settlement Commissioner and others (PLD 1972 Quetta. 97), Addl. Chief Engineer v. Messrs Nasim Co. (Pvt.) Ltd. 1991 CLC 1476 Arshad Naseemuddin Ahmed v. Javed Baloch and others (2012 CLC 1293).
4. The arguments on behalf of the learned counsels for the respective parties have been heard and the relevant record has been perused with their able assistance.
5. The period of limitation for filing an Intra Court Appeal under section 3 of Law Reforms Ordinance, 1972 is provided in Article 151 of schedule 1 to Limitation Act, 1908 and is twenty days from passing of the judgement. These are two relevant questions for determining whether the instant appeal is within the period of Limitation; firstly whether certified copy of the Judgement is required to be appended with the memorandum of appeal in an Intra Court Appeal and secondly where the appeal is filed within the limitation period but the office raises objections and those are removed beyond the period prescribed by the office would rendered the appeal barred by limitation.
6. In terms of Chapter 1 Rule 4 of Volume 5 of the Lahore High Court Rules and Orders (which are applicable to this court as well) attaching a certified copy of the order or judgement is not required for filing Intra Court Appeal. The said provision reads as follows:- "In an Infra Court Appeal the memorandum of appeal need not the accompany by a copy of decree or order or judgement appealed from this court. The period of limitation prescribed in this rule shall be computed in accordance with the provision of section 12 of the Limitation Act, 1908".
The bare perusal of the above Rule shows that the certified copy of the judgement or order impugned is not required, however, Section 12 of the Limitation Act, 1908 has been made applicable. Under the said provision of the Limitation Act, in computing period of limitation prescribed for any suit, appeal or application the date from which such period is to be reckoned shall be excluded; under subsection (3) of section 12 ibid, the time requisite for obtaining a copy of the judgement on which it is founded is also to be excluded. The above mentioned Rule came up for interpretation and consideration before the Honourable Lahore High Court in case titled National Bank of Pakistan v. Khalid Javed Qureshi and others (PLD 2013 Lahore 269). In the said judgement the Honourable Division Bench of Lahore High. Court observed as follows:- There is also no cavil to the proposition that under High Court Rules and Orders Volume-V, Chapter-1, Rule 4, the memorandum of appeal is not required to be accompanied by a copy of decree, order or judgment appealed from, but it is to be sien that this Rule itself further provides that "The period of limitation prescribed in this Rule shall be computed in accordance with the provisions of section 12 of the Limitation Act, 1908." Section 12 of the Limitation Act, 1908 deals with computation of period of limitation, which includes the time consumed in obtaining certified copies of the impugned order/judgment. Therefore, by making section 12 of the Limitation Act, 1908 applicable even in computing the period of limitation about Intra Court Appeal, it can safely be said that although filing of certified copy of the order/judgment of learned Single Judge in chamber, is not required to be attached with an Intra Court Appeal, but by a liberal interpretation of the above Rules it can be said a deviation from settled practice of appending certified copy of impugned order/judgment is just a facility for the litigant and where under a prima facie bona fide impression a party considers that a certified copy was required for filing Intra-Court Appeal and that solely formed the reason in delayed filing of Appeal, such delay has to be condoned in suitable cases depending upon the facts and circumstances of such case, especially where valuable rights of the parties are involved and technical knockout is expected to infringe such rights. Therefore, we hold that benefit of section 12 of the Limitation Act, 1908 is available to the present appellant and when the time consumed in applying for certified, copy of the impugned order till its preparation and filing of Intra Court Appeal is excluded, the instant appeal becomes within time.
Similar Observations were made by the Honourable Balochistan High Court in case titled Aftab Alam Khan v. The Settlement Commissioner and others (PLD 1972 Quetta 97) and it was observed that:- the fact that in a letters patent appeal a copy of the judgement appealed against need not be accompanied is merely a facility but it often become necessary for a counsel to examine the judgement before drafting the grounds of appeal. Therefore, when such a copy has been applied for it is difficult to see how the time taken in obtaining such copy is not to be excluded in computing the period of limitation particularly when rule 4, Chap. I-A of Vol. V of the High Court Rules and Orders (Lahore) itself provides that Section 12 of the Limitation Act, 1908 would apply.
Likewise in case titled Additional Chief Engineer (ARMY), Okara Cantt and others v. Messrs Nasime Co. (Pvt.) Ltd. (1991 CLC 1476), the Honourable Division Bench of Sindh High Court observed that:- Though the period of limitation for filing High Court appeal was twenty days, however, Section 12, Limitation Act, 1908 would be applicable while computing period of limitation for purpose of filing such appeal, therefore, time requisite for obtaining copy of judgement or decree had to be excluded.
7. The two judgements relied upon by the learned counsel for the respondents though do observe that the period of limitation for filing an Intra Court Appeal is twenty days and the appeal filed thereafter is barred by limitation, however, do not take into account the relevant Rule of High Court Rules and Orders and also the effect of section 12 of Limitation Act, 1908. The appellant in the instant case applied for certified copy of the judgement dated 7.3.2016 on 8.3.2016 which was prepared on 10.3.2016 and the appeal was filed on 28.3.2016 under Diary No,3975/2016 therefore, in view of the above Rules as well as the case law the appeal was filed within the period of limitation as the time consumed in obtaining the certified copy of the judgement is to be excluded.
8. Office raised objections though with respect to the memorandum of appeal and provided a time frame to the appellant for removing the same. The needful, admittedly was not done within time prescribed, however, the appeal was re-filed after removing the objection on 5.4.2016 under Diary No,4420/2016. The Honourable Supreme Court of Pakistan in case titled Farman All v. Muhammad Ishaq and others (PLD 2013 SC 392) lucidly laid down the principle regarding the initial filing of the petition/appeal and re-filing after any objection has been raised their upon. In this behalf the august Apex Court observed as follows:- "It may be emphatically held that such a revision petition, which was filed within time prescribed by law, but was deficient in some respect, and such deficiencies were not supplied and made up in the given time, cannot be termed to be barred by time. It may be pertinent to mention here that where the revision petition is beyond limitation, the DR can point out to the petitioner this aspect and caution him, but has to fix the matter before the Court for its decision on the question of limitation leaving it for the petitioner to seek the indulgence of the Court on the question of limitation or otherwise. Be that as it may, we may like to refer here a verdict of this Court which has nexus to the matter i,e, Mst. Sabiran Bibi v. Ahmad Khan and another (2000 SCMR 847) holding that:-- "Thus, in view of above discussions we are inclined to hold that once a suit, appeal or revision has been presented before the authorized officer of the Court within the prescribed period of limitation, it cannot be treated barred by time for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such-like situation the Presiding Officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11 or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. It is also important to note that parties/Advocates' are also not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorized officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall be listed for non-prosecution before the Presiding Officer who may in his discretion allow time to comply with objections of office."
The upshot of the above discussion is, that where a revision petition has been filed within time, but 'the office objection(s) points out certain deficiencies in respect of the institution, for all intents and purposes, it shall be deemed to have been instituted within the period of limitation and where the petitioner does not remove the office objections and make up the deficiencies in the time provided by the office, the matter shall be placed before the Court on the judicial side and the Court shall decide about the fate of the petition in accordance with law, and as per some of the guidelines provided in the preceding part of this judgment. In the instant case, an error has been committed at both the levels, i,e, the office, where an impression was caused that the revision, petition of the appellant is rendered time barred on account of the lapse of the period due to the failure on part of the appellant to make up the deficiencies in the time specified by the office and requiring the petitioner to file the application for the condonation of delay, and also at the stage of hearing when the learned High Court, has not adverted to the fact of the case, the relevant law, quoted above, but has simply dismissed the petition as being time barred dueto the non- application of section 5 of the Limitation Act, 1908 to the revision petitions. Therefore, the impugned judgment cannot sustain which is hereby set aside and the matter is remanded to the learned High Court for the decision afresh on merits."
Similarly, in case titled Muhammad Boota v. Basharat Ali (PLD 2014 Lahore 1), the Honourable Division Bench of Lahore High Court while following the above mentioned judgement of the august Apex Court held that once the appeal is originally filed within the prescribed limitation period but was returned due to office objection which could not be removed within given time and that the office objections were finally removed the prescribed period of limitation for filing appeal had passed would not render the appeal barred by limitation. In case titled Shazia Munawar v. Punjab Public Service Commission, Lahore (PLD 2010 Lahore 160), the Honourable Division Bench of Lahore High Court, observed as follows:- It is clear and obvious that the appeal originally had been filed within time. The objection was raised which was removed. The only contention raised by the Additional Advocate-General is that the said objection was not removed within 7 days but perhaps within 9/10 days. However, the Additional Advocate-General has not pointed out as to when and if the list of objection cases was in fact displayed by the Office or when and if the counsel filing the appeal was informed. Be that as it may, the question of limitation in such-like cases has been finally put at rest by the Honourable Supreme Court of Pakistan in the case of Mst. Sabiran Bi (supra) wherein it has been held as follows:- Thus, in view of above discussions we are inclined to hold that once a suit, appeal or revision has been presented before the authorized officer of the Court within the prescribed period of the limitation, it cannot be treated barred by time for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such-like situation the presiding officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11 or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. It is also important to note that parties/Advocates are also not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorized officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall be listed for non-prosecution before the presiding officer who may in his discretion allow time W comply with objections of office".
In case titled Province of Punjab and others v. Abdul Ghani and others (2016 MLD 988), the Honourable Lahore High Court held that when revision was initially filed within the prescribed period of limitation and office raised objection and time for removing objection if consumed more than the time granted by the court then revision could not be dismissed as barred by time.
9. In light of the above case law where the initial filing is within period of limitation and objections are raised which subsequently are removed beyond the period prescribed then the appeal cannot be termed as, barred by time as the procedure prescribed under the High Court Rules and Orders has to be followed and elucidated by the Honourable Supreme Court of Pakistan in PLD 2013 SC 392 supra which in the present case is not evident whether the same was done nor learned counsel for respondent have pointed out that, it was followed.
10. For the reason setout above we are of the view that the instant appeal is not barred by limitation and was filed within the time period prescribed. In view of our above findings on the question of limitation, now to come up for arguments on merit.