' On 22-9-1988, Muhammad Hussain, petitioner/plaintiff filed a suit for specific performance of an agreement to sell against Fateh Muhammad and others in the Court of Senior Civil Judge, Layyah.
Alongwith the suit, he filed an application for tcmprorary injunction. The application was resisted.
The application was accepted subject to the condition that the petitioner/plaintiff would give produce to Fateh Muhammad respondent. Feeling aggrieved by the imposition of this condition, Muhammad Hussain plaintiff/petitioner filed an appeal, which was entrusted to Addl. District Judge, Sahiwal. Alongwith the appeal, the petitioner/plaintiff filed an application under section 5 of the Limitation Act for the condonation of delay. The Appellate Court refused to condone the delay and dismissed the appeal as barred by time. Hence this revision.
2. The appeal was barred by 27 days. The learned counsel for the petitioner submitted that the order in the application for temporary injunction of the petitioner/plaintiff was passed on 26-4- 1989. The petitioner applied for the certified copy of the order on 29-4-1989. The Copying Agency gave a Parchi indicating 6-5-1989 as date for the delivery of the copy of the order. On 6-5-1989, the petitioner approached the Copying Agency, but he was told that the copy was not prepared and no further date for the delivery of the copy to him was given by the Copying Agency. On 13-5-1989, he again approached the Copying Agency for the supply of the copy of the order to him, but by that date the copy of the order was not prepared. It was on 26-6-1989 that he was supplied the copy of the order of the trial Court. On examining the same, the petitioner found that the date of the preparation of the copy was mentioned as 15-5-1989. The learned counsel argued that since no further date for the supply of the copy of the order was given to the petitioner by the Copying Agency, therefore, the time spent between the date of the application and the date of the delivery shalt be excluded. On the contrary, the learned counsel for the respondents supported the judgment of the learned Addl. District Judge and the reasons given by him for the rejection of the prayer for the condonation of delay.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that in support of his applications under section 5 of the Limitation Act, the petitioner had filed an affidavit but no counter affidavit was filed by the respondents. In view of the plea raised by the petitioner, it was not possible to disbelieve the explanation given by him for delay in lodging the appeal without examining the record of the Copying Agency or the clerk, who received the application for the supply of the copy of the order or who prepared the same and the Clerk of Court, who certified the same to be true copy. Strangely enough, without making any investigation into the explanation given by the petitioner, the learned Appellate Court declared the appeal time-barred on surmises and conjecture.
4. Pursuant to the above discussion, the revision petition is accepted. The order dated 23-7-1990 of the learned Addl. District Judge, Sahiwal, is set aside and the case is sent back to him for fresh decision of the application for the condonation of delay under section 5 of the Limitation Act and of the main appeal after examining the record of the Copying Agency, recording the statements of the concerned clerks, if necessary, and giving parties an opportunity of being heard. The parties shall bear their own costs.