1. ZAFFAR HUSSAIN MIRZA, J.--Leave to appeal was granted against the judgment of a learned Single Judge of the High Court dated 12th August, 1987, dismissing the appellant's appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance'), as time-barred.
2. The relevant facts for the present purpose are that an ejectment order was passed against the appellant by the Rent Controller on 29th May, 1985. The application for certified copy was made by him on 27th July, 1985, namely, 30 days after the period of limitation would have expired as provided by section 21 of the Ordinance. The copy of the order was furnished to the appellant on 28th July, 1985, and the appeal was filed before the High Court on 1st August, 1985.
3. On an objection that the appeal was barred by time, it was submitted on behalf of the appellant that the 30 days limitation period having expired on 28th June, 1985, when the High Court was closed for summer vacation, the appeal was properly presented on the reopening day i.e. 1st August, 1985. However, the learned Single Judge repelled this contention by placing reliance on a judgment of the Sindh High Court reported as Rauf Hussain Qureshi v. Muhammad Naqi Jumlana 1986 CLC 1367 which was upheld by this Court as a petition for leave to appeal there from was dismissed on 19th May, 1986, in civil petition for leave to Appeal No.163-K of 1986.
4. Now section 4 of the Limitation Act reads as follows:--- "Where the period of limitation prescribed for any such appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens."
5. On a plain reading of the aforesaid provisions, as admittedly the period of limitation for the appeal in this case expired on 28th June, 1985, on which day the High Court of Sindh was closed for summer vacation, the appeal could be competently preferred on the reopening day of the Court, which was 1st August, 1985, when indeed the appeal was presented in the High Court. However, the learned Judge on the view taken in Rauf Hussain Qureshi's case held that the appeal would be barred notwithstanding section 4 of the Limitation Act, unless the application for certified copy is made within 30 days. As such application in the present case was made beyond the period of 30 days, the learned Judge held that the appellant could not take advantage of section 4 of the L4nitation Act.
6. We see no warrant for this view on the plain language of section 4. Section 12 of the Limitation Act, 1908 is an exclusionary provision whereby certain time in certain situations and circumstances is excluded from the computation of the period of limitation prescribed by law. Subsection (2) of said section provides for exclusion of time requisite for obtaining a copy of the judgment on which the decree under appeal is founded. Thus, section 12 is a provision relating to the computation of period of limitation for suits, appeals and applications and in the prescribed circumstances, certain periods of time are excluded in computing such period. On the other hand section 4 of the Limitation Act has nothing to do with computing the prescribed period. (See Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others AIR 1935 PC 85). It, therefore, appears reasonable to hold that if a party does not claim exclusion of any period of time under section 12(2) of the Limitation Act, it would be against the law to deprive him of the benefit of section 4 in case the ordinary period of limitation expires on a holiday, to prefer the appeal on the reopening of the Court. To hold otherwise and to put a condition for availing the benefit of section 4 upon the making of an application for copy within the ordinary limitation period, would be reading something into the provisions of section 4 which is not prescribed by the legislature. In the case of Rauf Hussain Qureshi, it was not laid down as a proposition of law that for securing the benefit of section 4 it is necessary for a party to make 'an application for copy of the order with the period of limitation. In the facts of that case there was no question considered whether the time for filing appeal expired on a holiday and the appeal was, therefore, properly presented on the reopening day. Reference was made in the said case to Mst. Rukhsana Khan v. Tariq Ataullah PLD 1977 Kar.
7. 569 and Abdul Bari v. Muhammad Saeed 1982 CLC 2264. So far as the first noted case is concerned the facts were distinguishable inasmuch as in that case appeal was filed some time after the reopening of the Court and it was held that the appellant was entitled to one day's time which remained un-expired out of the limitation period on the day of the application plus the time taken in obtaining copy. Therefore, the case proceeds on entirely different set of facts and the point under consideration in this case did not arise there.
8. So far as second noted case of Abdul Bari is concerned it was indeed held by the learned Single Judge of the Sindh High Court, that the appeal in that case although filed on the reopening day, when admittedly the period of limitation expired on a day when the High Court was closed for summer vacation, the same was barred by limitation because the application for copy was made after the expiration of limitation period. The ground that prevailed with the learned Judge was that the provisions of section 4 of the Limitation Act did not in any manner alter the length of period prescribed for preferring the appeal. This view was largely based on the view taken in Ziaul Haq v.
9. Dr. A. Brabant and another PLD 1962 Pesh.
21. The facts of the Peshawar case were, however, distinguishable. In the case although the time for filing appeal had expired during the vacation, the appellant had applied for copies of judgment and decree after the prescribed period, but while the right of appeal was still subsisting, inasmuch as the Court had not yet reopened. But it is important to note that the copies were obtained two days after the Court reopened and the appeal was filed on the third day. On these facts, the following observations were made:-- "It is clear, therefore, that in the present case the period of limitation expired on the 19th of August, 1961, but as on that date and the following days, of the month of August the Civil Courts were closed, under section 4 of the Limitation Act the respondents were entitled to present their appeal on the day the Courts reopened, namely, the 1st of September, 1961. But the period of limitation did not stand extended up to the 1st of September, 1961. The time spent in obtaining a copy of the order appealed against could only be excluded under section 12 of the Limitation Act if the application for the copy had been made before the expiry of the period of limitation: and not after such expiry, as was done in the present case. As the appeal was presented not on the 1st of September, but on the 5th of September, 1961, it must be held to be barred by time:"
10. From the above passage it is clear that firstly the learned Judge conceded that if the appeal had been preferred on the reopening day it would have been competently filed. But the question was whether the four days that elapsed after the reopening of the Court and before the filing of the appeal, could be excluded, which is why the reference was made to section 12 of the Limitation Act.
11. It was in connection with section 12 that the learned Judge held that the application for copy should have been made before the expiry of period of limitation. The requirement of making application for copy was, therefore, clearly not laid down in connection with the accrual of benefit under section 4 of the Limitation Act. The learned Judge in the case of Abdul Bari, therefore did not properly interpret the dictum laid down in the Peshawar case. We do not subscribe to the view taken in the said case of Abdul Bari and do not approve of the same. In the impugned judgment, which proceeds on the basis of the said view, it was not rightly held that the appellant was not entitled to prefer appeal on the reopening clay, as he had not made an application for copy of the order within the period of limitation.
12. For the foregoing reasons this appeal succeeds and the judgment of the High Court is accordingly set aside.
13. In the result we allow this appeal and remand the case to the High Court for disposal of the appeal filed by the present appellant on merits. There will, however, be no order as to costs.