' This civil revision raises a legal question involving interpretation of the words "time requisite" occurring in section 12(2) of the Limitation Act (Act IX of 1908). The question may be formulated thus:-- "Whether the period between the date when the copy is ready and the date when it is delivered should be excluded being "time requisite" if the copying agency fails to give information to the applicant or gives wrong information to him as to the preparation and date of delivery?"
2. The brief facts giving rise to the controversy are as follows: ' Salim Dil Khan and two others, petitioners filed three suits for possession by pre-emption of certain lands, as described in each of these plaints. These suits were partially decreed on 22nd July, 1986 by the learned Civil Judge, Lakki. The petitioners thereupon filed three appeals in the Court of the learned Additional District Judge, Bannu, at Lakki on 25th November, 1986, which were dismissed on 14th September, 1988 as being barred by limitation. Feeling aggrieved, the petitioners have filed three Civil Revisions No,143-D, 144-D and 145-D of 1988 against the three appellate decisions. Since common question of law is involved in all these three petitions, the same arc, therefore, proposed to be disposed of by this single order.
3. It appears from the record that the suits were partially decreed on 22nd July, 1986. The petitioners applied to the Copying Agency, Bannu, for the copies of the judgments and the decrees on 12th August, 1986. The copies which were ready for delivery ,on 12th November, 1986 were collected by the petitioners on 24th November, 1986, while the appeals were filed on 25th November, 1986. The learned Appellate Court, reckoned the period of limitation from 12th November, 1986 and held that the petitioners having failed to explain the delay of 12 days which occurred between the date of preparation of copies and the date of collection thereof, the suits were barred by time and thus dismissed the appeals filed thereagainst. Hence these petitions.
4. S. Zafar Abbas Zaidi, the learned counsel for the petitioners relied on:
(1) Gul Muhammad v. Allah Ditta (PLD 1960 (W.P.) Lahore 445) (2) West Pakistan Industrial Development Corporation v. Aziz Qureshi (1973 SCM R 555); (3) Muhammad Din v. Muhammad Siddique (PLD 1975 Lahore 802); (4) Conservator of Forest Hazara Circle v. Lal Khan (PLD 1976 Peshawar 118) and (5) Ahmed Nawaz v. Muhammad Ayub (PLD 1988 Supreme Court 258), for the proposition that the "time requisite" for obtaining copies which can be excluded under section 12 of the Limitation Act, undoubtedly is the time which is taken between the date of application for copies and the date when the copies are ready, but it can further be extended if further delay occurs on account of failure of the copying agency to specify the date of preparation of the copies.
5. Sardar Allah Nawaz Khan, learned counsel for the respondents, on the other hand, contended that the time between date on which the copy is ready for delivery and the time on which the applicant chooses to take delivery thereof, is not "time requisite" for obtaining a copy under section 12(2) of the Limitation Act, 1908 and referred to: (1) Fateh Muhammad v. Qadir Bakhsh (1975 SCM R 157); (2) Fazal Rehman v. Karim Gul (1988 SCM R 1256). The learned counsel then submitted that in the absence of any application for condonation of delay which was a sine qua non for condoning the disputed period, the Appellate Court was perfectly justified to have held the appeals as time- barred. In support of this proposition, reliance was placed on Ziaul Haq v. A. Brabant (PLD 1962 Peshawar 21).
6. In Qadir Bakhsh's case cited above, no doubt the rule laid down was that the time requisite for obtaining copy of the order within the contemplation of section 12 of the Limitation Act, does not include the time between the date on which the copies are ready for delivery, and the date on which the applicant chooses to take delivery thereof. This view of the august Supreme Court was approved in the precedent case of Fazal Rehman cited above. "However, the time can be further extended" said their Lordships of the Supreme Court, "if the further delay has taken place by reason of the carelessness of the officer in giving wrong information to the applicant as the date on which the copies would be ready or no information at all is given in this respect." Again in the authoritative pronouncement in Ahmed Nawa7 v. Muhammad Ayub (PLD 1988 Supreme Court 258), Muhammad Afzal Zullah, J., as his Lordship then was, alluding to the prevalent controversy on this point from the date Gul Muhammad v. Allah Ditta (PLD 1960 (W.P) Lahore 443) was decided, was pleased to suggest legislative intervention on the ground that the litigant public experiences uncertainty and suffers considerable expense and inconvenience on account of existing state of law in this behalf.
7. It would thus be seen that the state of uncertainty in the existing law on the subject has been conceded by as high a forum as the Supreme Court. It is unfortunate that the direction of the Supreme Court has not so far been heeded to by the authorities that be. Obviously the consensus that has emerged is that an applicant cannot be permitted to avail himself of the provisions of section 12(2) unless he satisfies the Court that he has exercised due diligence towards obtaining the copy. Afterwards any delay in obtaining the copy, for which delay the appellant is responsible (e.g., where the delay is due to the lathes or negligence of the appellant himself) cannot he excluded. Obviously,the delay caused by the neglect of officials who issue copies or who are required to give notice when such copies are ready, or the delay caused by the office in preparing the copy without definite intimation of the date of preparation thereof would be allowed as "time requisite" under section 12(2) ibid.
8. The second contention of the learned counsel for the respondents that having failed to file any application under section 5 of the Limitation Act, 1908 for condonation of delay the petitioners were not entitled to the benefit of section 12(2) ibid stands repelled by the august Supreme Court in Mst. Jamila Khatoon v. Mst. Tajunnisa (PLD 1984 Supreme Court 208) with the following observations:-- "The crucial words used in section 12(2) of the Limitation Act are "time requisite" and the Court is required by law to execlude the time requisite for obtaining a copy of the order appealed from. This is a statutory provision of exclusion and is to be distinguished from the power conferred on a Court of law under section 5 of the Limitation Act to admit an appeal after the period of limitation prescribed therefor, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. In this sense the operation of section 12 is distinct from that of section 5, which confers a discretionary power on the Court. No such discretion vests under section 12 and the litigant is entitled, as of right, to exclude the period spent in obtaining copies. Thus section 12 confers a substantive right upon the appellant to claim the time as excluded and the Court cannot impose upon the statutory right of any appellant a restriction not warranted by the Act."
9. It would thus he noticed that provision of section 12 has no nexus with that of section 5 of the Limitation Act, 1908, in that, the former provisions are distinct from those of the latter. Under section 12, a litigant is entitled as of right to claim exclusion of the period spent in obtaining copies while under section 5 Court has discretion to admit the appeal after period of limitation prescribed therefor, if it is satisfied that the appellant had sufficient cause for not filing the appeal within such period. Section 12 is thus independent of section 5.
10. In the instant case, exact point calling for determination, before the appeals were held to be barred by time, was whether the Copying Agency gave any date to the petitioner when the copies would be ready for delivery, if so, what was the date. In the absence of any such material this point cannot possibly be determined. The cases, therefore, warrant remand to the learned Appellate Court for the determination of this controversy. In arriving at this conclusion long chain of authorities cited at the bar by both sides have been relied upon by me.
11. In the light of what has been observed above, these Civil Revisions are accepted and in consequence the judgments and the decrees passed by the learned Additional District Judge, Bannu, at Lakki, are set aside and the appeals are remanded to him for determination of the point whether the appellants were intimated by the Copying Agency of the date of preparation and delivery of the copies, if so, had the petitioners been guilty of laches in collecting the copies and then decide the case in accordance with law. In this connection the learned Appellate Court shall, besides looking into the record of the Copying Agency, record evidence for and against this controversy. Costs to follow the event.