' RUSTAM S. SIDHWA, J.- The question of condonation of delay in filing this L.P.A. In light of affidavit of S. Riaz Ahmad Pirzada, learned counsel for the appellants, as well as other evidence on record, has come up for hearing before us today.
2. The relevant facts are that a learned Single Judge of this Court decided Writ Petition No, 2345- R/63 on 13th December, 1966. This L.P.A. Against the said decision was filed by Budha etc. On 21st January, 1967. In para. 11 of this appeal, it was stated that the appellant had applied for copy of the impugned order of the learned Single Judge on 20th December, 1966 and the copy had not been delivered to him till then. An Application (C.M. 1/67) for condonation of delay in filing the said appeal was also filed alongwith the said appeal, in which the same averments were made. This application was supported by an affidavit of Budha petitioner/appellant also.
3. Although it had been stated in the application for condonation of delay that the certified copy of impugned decision of the single Judge had not been delivered to the appellant so far, no certified copy was filed thereafter even, although appeal was admitted to regular hearing, on 16th May, 1967 and has remained pending since then upto this time.
4. In these circumstances, preliminary objection was raised by the learned counsel for the respondent that last date of limitation for filing this appeal was 2nd of January, 1967 but it had been filed without a copy on 21st January, 1967 and as such it was barred by time. It was contended by learned counsel for the respondent that according to High Court Rules and Orders, an appeal under clause 10 of the Letters Patent need not be accompanied by a copy of order or judgment appealed from and since the present appeal had been filed without a copy, appellant could not claim benefit of section 12 of Limitation Act and when considered in this light, the appeal was clearly filed 19 days beyond statutory period of 20 days prescribed for such an appeal and, therefore, this appeal should be dismissed under section 3 of the Limitation Act.
5. The arguments of the learned counsel for the respondent, however, exclude from consideration the averment of the appellant that he had filed an application for grant of certified copy of order, dated 13th December, 1966 of the Single Judge in the Copying Branch of the High Court on 20th December, 1966 and had not been granted the copy till the day the said appeal was filed. The said argument totally disregards the circumstance that the appellant had prayed for condonation of delay in filing this appeal. Here before us is, therefore, a case in which Budha, petitioner/appellant, had initially decided to get a certified copy for filing an appeal and had let time go by, waiting for receipt of the said certified copy, but had later, on seeing that time was passing without said copy being prepared, changed his mind and in order to avoid further delay, filed the appeal without the copy which had not been made available to him even on the day he filed the appeal. This is not a case simplicitor of filing of an appeal without a copy, but one in which an element of filing of an application for grant of a certified copy and waiting therefore is involved. In our view, therefore, the crucial question which arises in this I case is as to whether, after failure of the appellant to get a copy, delay in filing the appeal without a copy can and should be condoned on facts and circumstances of this case or not. This appeal cannot, therefore, be dismissed on the ground that it is of category of appeals filed without a certified copy and must be dismissed as one filed after the period of limitation. In this appeal, question of condonation of delay in filing this appeal has got to be considered. We, therefore, overrule the objection of the learned counsel for the respondent and proceed to determine whether the delay of 19 days in filing this appeal should be condoned or not.
6. For this purpose we had summoned a representative of the Copying Branch, Lahore High Court, Lahore, where the application for grant of copy had been filed and had directed him to produce the record relating to the said application in order to show whether the certified copy was prepared and, if so, on what date, and whether it was delivered to the applicant or sent to him by V.P.P. At his address. Muhammad Rashid Akhtar, Supervisor Copy Branch, Lahore High Court, Lahore, appeared on 6th June, 1983 and stated before us that though the entry of this application for grant of copying was available in Petition Receipt Register at Serial No, 6858, on 20th December, 1966 the columns relating to the delivery of the same were vacant in the register and this showed that the copy had not been delivered at the window and, if actually prepared, it may either have been sent to Budha, appellant, by V.P.P., if he made the said request in the said application, or may have been sent to the District Magistrate for realization of the charges of the Copying Branch and delivery thereof to Budha etc. He, however, admitted that there was no record at present available in the Copying Branch of the High Court to show as to whether the said copy was ever prepared or not or even sent by V.P.P. Or through D.M., to the petitioner/appellant at any time. Learned counsel for the appellants, Mr. Riaz Ahmad Pirzada, has also submitted the original receipt issued by the Copying Branch showing that an application had been made by the appellant for grant of certified copy of the order, dated 13th December, 1966 of the learned Single Judge on 20th December, 1966. The factum of filing of the application for grant of certified copy is supported by entries in Petitions Receipt Register of the Copying Branch of the High Court. Learned counsel for the appellants, Mr. Riaz Ahmad Pirzada, has today filed an affidavit that he had filed the L.P.A. Only after ascertaining from the Copying Branch that the certified copy of the impugned order had not been prepared and was not available for delivery to him on the date he had filed the appeal in the Registry of the High Court at Lahore. There is no counter-affidavit, nor it is claimed that respondent had any knowledge in respect of relevant facts. The said affidavit having, therefore, remained unchallenged and coming from a senior Advocate of this Court must be believed. The proved facts in this case, therefore, are that an application for grant of copy was filed by petitioner/appellant, on 20th December, 1966 and its copy was not prepared till 21st January, 1967 when the appeal was actually filed in this Court.
7. Petitioner/appellant having legitimately exercised his option initially to file the appeal on receipt of a certified copy of the impugned order and having acted in the matter and filed an application for grant of a certified copy, on 20th December, 1966 was within his right in waiting for preparation of the copy and in allowing time to pass by, relying on the circumstance that he would be entitled to exclusion under section 12 of the Limitation Act of requisite time spent in preparation of the said copy, due to which his appeal would not become time barred. Again, finding that filing of the L.P.A.
Was being unnecessarily delayed due to non-preparation of the certified copy, he was entitled to reconsider his position, change his mind and file the appeal without certified copy. Time, therefore, which had elapsed in the waiting for preparation and delivery of certified copy to him was not the result of any negligence on the part of petitioner, but due to circumstances beyond his control, namely, non-preparation of certified copy of the judgment of learned Single Judge by Copying Branch of the High Court. We are, therefore, satisfied that in the circumstance of this case, this delay from 2nd January, to 21st January, 1967 should be condoned under section 5 of the Limitation Act. We accordingly allow this application (C.M. 1 of 1967) and condone the delay of 19/20 days in filing this appeal.
' The case shall now be fixed for hearing on merits on 23rd October, 1983.