1. ' This is a Second Appeal against the judgment and decree of Additional District Judge, No.11, Karachi, dated 31-10-1975 in a Civil Appeal No.81 of 1975 whereby the learned Additional District Judge has dismissed the appeal of the appellant on the grounds that the appeal was barred by limitation.
2. ' The brief facts of the case are that the respondent had filed a suit No.895 of 1971 against the appellant for recovery of Rs.3,000 as damages for malicious prosecution. The suit was decreed on 4-1-1975 against the appellant. The record shows that on 6-1-1975, an application was made by the appellant for a certified copy of the judgment and decree passed in the said suit for recovery of Rs.3,000 as damages for malicious prosecution. The application was granted on the same day. A certified copy of the judgment was supplied to him on 29-1-1975 but no copy of decree was supplied to him on' 20-1-1975. The appeal was filed without the certified copy of the decree and only with the certified copy of the judgment. In due course the appeal was admitted on 17-5-1975.
3. Notices of this appeal were accordingly served on the respondents ultimately when the appeal became ready for hearing it was fixed for hearing of arguments on 26-9-1975.
4. ' Mr. Suleiman Qasim the learned counsel for the respondent took a preliminary objeotions against the competence of the appeal on the ground that the appeal at the time of its presentation was time-barred. Mr. Ansar Hussain the learned counsel for the appellant submitted that the appeal was presented on 20-2-1975.
5. ' The appellant applied for certified copy of decree on 8-2-1975 which was delivered to him on 13- 2-1975. He further contended that since decree was merely a formal expression of the adjudication, the appeal was not time-barred. The arguments of the learned counsel for the parties were concluded and the judgment was reserved. Before the judgment was announced, the appellant filed an application under section 5 of the Limitation for condonation of delay in filing the appeal.
6. ' The IInd Additional District Judge by his judgment, dated 31-10-1975 dismissed the appeal as well as application under section 5 of the Limitation Act, for the reasons given in the said judgment.
7. ' The appellant above named, being aggrieved by the judgment and decree, dated 31-10-1975 of the IInd Additional District Judge, Karachi, had preferred this second appeal on the grounds mentioned in the memo. of appeal.
8. ' Mr. Syed Ansar Hussain, the learned counsel for the appellant has contended that a decree is the formal expression of an adjudication in a suit and that where, as in this case, the Court having admitted the appeal must be presumed to have dispensed with the filing of certified copy of the decree. The second contention is that the Additional District Judge had exercised his discretion under section 5 of the Limitation Act in a grossly unjust and unreasonable manner in not condoning delay. Mr. Ansar Hussain has relied on the following decisions:- "1980 CLC 66 and 1980 CLC 530."
9. ' On the other hand Mr. Suleiman Qasim the learned counsel for the respondents had contended that under Order XLI, rule 1, C.P.C. every appeal has to be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf, and has to be accompanied by a copy of the decree appealed from and the judgment on which it is founded. He has further contended that the reasons given under section .5 of the Limitation Act were not sufficient for extending the Limitation. He has cited the following case 1981 CLC 1479.
10. ' The position of law under Order XLI, rule 1 is absolutely clear. Under the said rule every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf and has to be accompanied by a copy the decree appealed from and the judgment on which it is founded. Rule 1 empowers the appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree. In law the appeal is not so much against the judgment as against the decree; that is why Article 152 of the Limitation Act prescribes a period of thirty days for such appeal and provides that the period commences to run from the date of the decree under appeal.
11. ' In the present case the appellant had applied for a certified copy of the judgment as well as the decree in the trial Court on 6-1-1975, and he was not given a copy of the decree; what he was given was a copy of judgment. The document, he filed alongwith memo. of appeal.
12. ' Unfortunately, when the appeal was presented in the District Court, even the office of the District Judge was not careful in examining the appeal as it should have been and the appeal passed through the stage of admission under Order XLI, rule 11 Civil Procedure Code without the defect in the appeal being brought to the notice of the learned District Judge who admitted it. Thus it is quite clear on the record that the appellant had applied for a certified copy of the judgment and decree and when he was given only a certified copy of the judgment he filed the same alongwith the memo. of appeal in the bona fide belief that the said documents would meet the requirements of Order XLI, rule 1, C.P.C. It is true that before the appeal came on for actual hearing before the Additional District Judge the respondents raised a preliminary objection that the appeal is time- barred.
13. ' The position, therefore, is that when the certified copy of the decree was filed by the appellant in the District on 20-2-1975, the whole of the period between the date of application for the certified copy and the date when the decree was actually signed would have to be excluded under section 12 (2). Inevitably the presentation of appeal on 20-2-1985 would be in tinie. Faced with this position Mr. Sulaiman Qasim attempted to urge that the application made by the appellant on 6-1-1975 was not really an application for a certified copy of the judgment and the decree, he contended that it was an application for the certified copy of the judgment. This argument is wholly untenable.
14. The words used in the application clearly show that it was an application for a certified copy of the judgment as well as for the decree. The failure of the trial Court to supply certified copy of the decree on 29-1-1975 as well as the failure of the office of the District Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present unfortunate position. In such a case there can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. As observed by Cairns, L.C. in Rodger v. Comtoir Escompte de paris (187) 3 P C 465" one of the first and highest duties of all Courts is to take care that the Act of the Court does not injury to any of the litigants. "In the case of Ismail Brothers v. S.M. Fazail & Co. PLD 1958 Kar.
15. 159 Inamullah, J. (as he then was) held that no party should suffer by act of Court".
16. As indicated earlier the appellant had applied for obtaining certified copy of the judgment and the decree on 6-1-1975 and the officer had supplied the certified copy of the judgment on 29-1-1975. It is admitted that the appellant had applied for certified copy of the decree on 8-2-1975 and the same was supplied to him on 13-2-1975. This is also not in dispute that the decree was drawn in pursuance of the judgment of the Civil Judge, dated 4-1-1975 on the same day and it was also signed on the same day. It is borne out from the decree sheet, dated 4-1-1975 of the Court.
17. ' The meaning and scope of the phrase "time requisite for obtaining a copy of the decree or order" was liberally interpreted by the various High Court in Sub-divided continent. The leading case of Bani Dhub Mitter v. Matungine Dassi I L R 13 Cal. 104 (F.B.) In Pramatha Nath Roy v. W.A. Lee, AIR 1922 P C 352.
18. The judicial committee distinguished Bani Madhub's case on the ground that the appellant therein was not at fault at all and all that Bani Madhub's case had decided was that the two period of time "one of which was prompt and effective and the other of which the appellant might not have been able to control ought to be deducted from the length of time between the decree and the lodging of the memorandum. In their Lordship's opinion the real test was whether the party was responsible for the delay in preparation of the decree or order, or the delay was avoidable, and due to circumstances beyond the control of the appellant." The conduct of the appellant was considered to be a material factor in determining the time requisite for obtaining a copy of the decree or order.
19. In computing such time requisite the benefit of any period which elapsed due to the circumstances beyond the appellant's control had to be given to him. But any time which lapsed on account of his default should not be excluded.
20. ' In Jiji Bhoy N.Surty v. T.S.Chettyar (a firm) AIR 1928 P C 103 the judicial committee held that the word 'requisite' in section 12 (2) means properly required and implies that no part of the delay beyond the appellant's default.
21. ' In my opinion the expression time requisite as used in section 12 (2) means all the time counted from the date of the pronouncement of the judgment (the same being under Order XX, rule 7, C.P.C. the date of decree) which would be properly required for getting a copy of the decree that is decree is drawn up and signed. If any period of the delay in preparing the decree was atributable to the default or negligence of the appellant, the latter shall not be entitled to exclusion of such period under section 12 (2) of this Act.
22. ' Applying the law as enunciated above to the facts of this case it will be seen that the appellant had applied for copy of judgment and decree on 6-1-1975.
23. ' The next contention of the learned counsel for the appellant that apart from the sworn affidavit of the appellant, there were patent circumstances in this case which by themselves constituted a sufficient cause for condoning the delay of 15 days in filing the appeal. His submission is that after the appellant had filed appeal he realised that copy of decree should have been filed alongwith his appeal as such he applied for copy of the decree but by that time about two months have passed.
24. His submission is that the appellant had diligently presented the appeal in time but due to technical omission his appeal may not be defeated on point of limitation.
25. 'It is to be noted that in the Court below the appellant did not take up the plea that the delay was due to wrong advice of the counsel or that the appellant was labouring under any mistake or misapprehension of law. The case then set up by him was that although he had not filed the copy of the decree alongwith the appeal but no objection was raised by the office and that after he had filed the appeal he realised E that the copy of the decree should have been filed alongwith the appeal and as such he applied for the copy of the decree but by the time about two months have passed.
26. Section 5 of the Limitation Act gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause"receiving liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputed to the appellant. The appellant had applied for certified copy of the judgment and decree on 6-1-1975. That failure of the copying department to supply the copy of the decree in spite of the application on 29-1-1975 contributed largely to the delay in filing it. The appellant cannot be held responsible for the laches of the copying department. The appellant filed another application for obtaining the certified copy of the deceased. I am inclined to accept the statement that he was under the bona fide impression that the decree was not prepared till 29-1-1975 and that is why it was not supplied to him by the copying department.
27. ' This being the evidence on record, it is clear to me that the decree was not ready on 6-1-1975 and also on 29-1-1975 when the certified copy of the judgment was delivered to him. It is presumable that the appellant had pursued his case with vigilance and the decree was not drawn till 29-1-1975.
28. In this view the case of the appellant would be covered by the ratio of Hon'ble Supreme Court's judgment in the case of Syed Fab All Shah v. Chief Administrator of Auqaf, Lahore 1974 SCMR 33 from which the following dictum may be produced with advantage:- "We cannot also ignore the fact that the appellant might well have been misled into thinking that the copy would not be available during the vacation of the High Court, particularly, since the copying section had not given him any date for the delivery of the copy".
29. ' It is not a case where it is possible or such inaction or negligence as would deprive him of the protection of section 5 of the Limitation Act. I am, therefore, inclined to allow his application under section 5 and to condone the delay in filing the appeal with a certified copy of the decree.
30. ' This appeal is, therefore, allowed, the impugned judgment of the learned Additional District Judge is set aside and it is directed that the case would go back to him for the hearing of the appellant's appeal on merits.
31. ' Under the circumstances, however, the parties would bear their own costs.