The present second appeal is directed against the judgment and decree of learned Additional District Judge, Multan, dated 29-8-19688, whereby he had dismissed the appeal as barred by time.
2. The trial Court, in a suit for a declaration that the appellants were the owners of 2/3rd share of the property detailed in the plaint and for perpetual injunction restraining the respondents from interfering with their possession, passed a decree on 20-10-1967 against appellants mainly on the ground that it had no jurisdiction to try suit. The appellants filed an appeal before the learned Additional District Judge on 27-3-1968. There was a report of the office that the appeal was apparently beyond limitation, but alongwith the appeal the appellant had also moved an application under section 5, Limitation Act, for extension of time with an explanation that they had applied for the copy of the judgment and decree of the trial Court on 28-10-1967; that the last date provided on the copy supplied to them by the Copying Agency was 29-2-1968 and the appellants obtained the copy on 19-3-1968, thus computing the period in this behalf the appeal was within tune. The application was supported by a photostat copy of the chit containing different dates given to the appellants and separate affidavits sworn in by both of them. The learned appellate Court was not satisfied with the explanation advanced by the appellants, therefore, it afforded an opportunity to them to substantiate the plea. It was stated that the appellants had cited the concerned clerk of the Copying Agency as a witness to prove their case but because he could not be examined, the learned Court found that the delay was not explained satisfactorily and for that reason the appeal was dismissed as barred by time. Hence this second appeal.
3. It appears from the record that the trial Court announced the judgment on 26-10-1967, and the appellants applied for the copies on 28-10-1967. The copies were prepared on 15-1-1968 but delivered on 19-3-1968. The appeal was filed on 27-3-1968 along with an application for extension of time on the ground that the Copying Agency had delayed in supplying the copies to the appellants and kept them on to various dates mentioned in the chit. They have tendered the chit in original in the present appeal and contended that they had been attending the office on different dates from 7-11-1967 to 12-2-1968 but they could not get the copies. Since some of the dates noted in the chit were unsigned, the authenticity of the document required a formal proof, the learned appellate Court, by its order dated 3-5-1968, allowed the appellant an opportunity to lead evidence in order to prove its correctness, and 25-5-1968 was fixed for this purpose. The appellants on 4-5-1968 furnished the particulars of Clerk of the Copying Agency and deposited Rs. 2.00 with another sum of Rs. 22.00 as his diet money. The witness was served for date fixed by the Court, but there is no order on the file whether or not the witness appeared in Court. Strangely enough, the Court had passed an order that the appellants requested for an opportunity to produce evidence.
The case was, however, adjourned for 29-6-1968, when the learned Additional District Judge, while dismissing the appeal as time barred, remarked that the appellants were allowed time till 25-5- 1968 to produce evidence on their own responsibility but unluckily none was produced on that day and a further adjornment was allowed to them time 29-6-1968 by his predecessor. It was further observed by him that on that day also they had not produced evidence. The objection of the appellants that they had already paid the process --fee and the witness was served and in case his evidence was not recorded, he should have been bound down for the next date, was repelled.
4. Process was duly served on the witness for 25-5-1968 but the order of that day does not show whether or not the witness had appeared then. In case he did not give his appearance in spite of service, it was the duty of the Court to have passed a proper order against the witness why he had not appeared and if he actually was present in Court, then it should have his statement. However, there was no occasion for the Court to put burden on the appellants to keep the witness in attendance till the time the Court was inclined to record his statement. The order of the Court dated 25-5-1968 seems to have been passed without applying its mind to the real state of affairs, therefore, no sanctity can be attached to it. There is a clear indication that the appellants were not heard on that day and the Court was, therefore,- wrong to say that an opportunity was being provided to them. In the circumstances, the learned appellate Court was not justified to observe that the responsibility or the blame could not be shifted to the Court. A public servant could not be dragged by the appellant for evidence without the assistance of the Court, therefore, his production on their own responsibility was unwarranted and the impugned judgment passed on the basis of the former set of wrong orders cannot be sustained.
5. For the reasons aforementioned, the appeal is accepted, the judgment and decree on 29-6-1968 are set aside and the case is remanded to the learned Additional District Judge for disposing of the application under section 5, Limitation Act in accordance with law after giving a reasonable opportunity to the parties in this behalf. The parties shall bear their own costs.
H.B.T./A-658/L