' MUHAMMAD AFZAL CINEMA, J.-Civil Appeals Nos. 16 and 17 of 1972 are connected matters between the same parties involving a common question and are disposed of by a single judgment.
Although in the petitions for leave to appeal, several points were raised but they were not taken up before us and the learned counsel for the appellants confined himself only to the solitary question of limitation.
2. The short back-ground of the two appeals is that Ghulam Jilani respondent No, 1 brought a suit against the appellants for possession of 18 kanals and 10 marlas of land. Of this he earlier claimed to be in actual possession of Khasra No, 183, measuring 9 kanals and 15 marlas and a part of Khasra No, 731 measuring 3 kanals and 7 marlas but was allegedly dispossessed. The plaintiff- respondent's claim was based on his rights as occupancy tenant of the suit-land which stood matured to that of ownership as a result of the enforcement of the N.-W. F. P. Tenancy Act, 1950. The suit was decreed in toto, vide trial Court's judgment. Dated 31-10-1962. Feeling aggrieved, the appellants preferred an appeal before the District Judge which was partly accepted by the Additional District Judge to the extent of 3 kanals and 7 marlas in Khasra No, 731, vide order, dated 2-4-1964. In respect of Khasra No, 183, the learned Additional District Judge held that it stood already mutated in favour of Ghulam Jilani respondent as a result of previous litigation between the appellants and the occupancy tenants including Ghulam Jilani respondent. As regards Khasra No, 731, the learned Additional District Judge took the view that with the enforcement of Act XXV of 1950 tenancy rights did not ipso facto mature into ownership rights but payment of the prescribed compensation was a condition precedent of which there was no proof. Accordingly, while partly accepting the appeal he modified the judgment and decree of the trial Court to that extent. Feeling aggrieved, both the parties went in appeal to the High Court.
3. R. S. A. No, 290 of 1964 filed by the appellant and R. S. A. No, 365 of 1964 filed by Ghulam Jilani respondent being connected matters were disposed of by a learned Judge of the Peshawar High Court, by a single order dated 18.4-1968. A preliminary objection raised by the appellants herein that the appeal filed by Ghulam Jilani respondent was hit by limitation was overruled, and his appeal was accepted on the ground that under section 4 (A) of the Tenancy Act, occupancy tenants automatically became owners to the extent of 1/2 share without payment of compensation. The appeal filed by the present appellants was dismissed on the ground that the previous suit between the parties operated as res judicata in respect of Kbasra No, 183.
4. As stated earlier, leave to appeal was granted by this Court primarily to consider as to whether the R. S. A. Filed by Ghulam Jilani respondent was hit by limitation, though other points raised in the petitions were not ruled out.
5. The sole point urged before us on behalf of the appellants is that R. S. A. No, 365 of 1964 filed by Ghulam Jilani respondent was time-barred and as such should not have been entertained. The judgment of the Additional District Judge from which this appeal was preferred is dated 2-4-1964.
Ghulam Jilani applied for obtaining a copy of the same on 17-4-1964. The copy was ready and delivered on 5-5-1964. Appeal was filed on 17-6-1964 without a copy of the decree sheet and as such being hit by Order XLI, rule 1, C. P. C. Was returned by the Registry. On 20-7-1964, a fresh application for obtaining a copy of the decree-sheet was submitted by Ghulam Jilani which was delivered to him on the 30th of July, 1964. The appeal was re-filed on 17-8-1964, against the order dated 2-4-1964 and was, therefore, apparently out of time. Since in the meantime, the High Court was closed for summer vacation, the preliminary objection raised on behalf of the appellants was overruled by the learned Judge on the ground that with the supervention of the vacation, the period of limitation stood extended and the appeal could be filed even on the re-opening of the High Court though otherwise, filed during the vacation.
6. It was contended before us on behalf of the appellants that although the appeal filed in the first instance without the decree sheet on 17-7-1964 were within time, but being defective, it was returned. On 7-8-1964 when it was re-filed, it was clearly out of time. Reliance was placed in this regard on Notification, dated 12-5-1964 referred to in the leave granting order which provided that "during the period of vacations petitions will be received daily from such persons as may choose to present them except on Sundays and public holidays". It was argued that in view of the Notification, the Court could not be deemed to be closed during the vacation for the purpose of filing of appeals. Reliance was placed on Nachiyappa Mudali and others v. Ayyasami Ayyar (I).
7. On the other hand, it was contended on behalf of respondent No, 1 that 19th of July, 1964 being Sunday as such the last date for filing the appeal fell on 20th of July, 1964, when the High Court was closed for vacations which automatically extended the limitation till the re-opening of the High Court. Reliance was placed on the statutory provision contained in Section 4 of the Limitation Act, which reads as follows :- "4. Where the period of limitation prescribed for any suit, 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 that the Court reopens."
8. It was argued that even though in pursuance of the Notification, the Office remained open yet "Office" cannot be equated with "Court" which nevertheless remained closed. Reliance was placed on (59 C. W. N. 684). It was submitted that even otherwise, the Notification referred to the choice of the petitioners to present the petition which could not be construed so as to detract from much less take away the statutory right conferred by section 4 of the Limitation Act. Reliance was also placed on Messrs Alyani Cotton Ginning and Pressing Factory, Rahimyar Khan v. Assistant Income- tax Officer and another (1).
9. Having carefully considered the contentions raised by the counsel to the parties, we are convinced that the view taken by the learned Judge of the High Court was unexceptionable. From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision.. Even otherwise, we find that there is no conflict between the notification and the Provision contained in section 4 of the Limitation Act. According to the notification, the Office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word "Office" as used in the notification is not synonymous with "Court" as used in section 4 of the Limitation Act.
The Court may be closed and yet the Office might still be open. Even otherwise, the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right. Even otherwise, it is doubtful that the word "Petition" as used in the D notification will cover a memorandum of appeal. I am therefore, clearly of the view that the appeal even though filed during the vacation could be filed on the re-opening of the Court and was, therefore, well within time. The authorities relied upon by the appellants are in point and the position is well settled. The only authority pressed into service on behalf of the appellants Nuchiyappa Mudali and others v. Ayyasami Ayyar referred to earlier proceeds on distinguishable facts. In that case the relevant Notification was in the following terms :- "The Courts will be open between the hours of 4 and 5 p. m. On Tuesdays and Fridays during the recess for the reception of plaints, petitions, and other miscellaneous papers."
' The difference in the terminology employed in the two Notifications is very material. The Notification pressed into service on behalf of the appellants uses the word "Office" which as stated earlier is not the same thing as "Court".
10. In consequence, I find no merit in these appeals, which are dismissed.
' MUHAMMAD GUL, agree.
(1) PLD 1973 Lab. 710