' Syed Wajih-ul-Hassan, appellant, filed a declaratory suit against the respondent to the effect that the ACRs in question and the order of dismissal of appeal filed thereagainst, are illegal and inoperative against the plaintiff-appellant. This suit was contested by the respondent, Aquaf Department, inter alia on the ground that the Civil Court has no jurisdiction and that ACRs as well as the order of dismissal of the appeal filed by the plaintiff are in accordance with the facts and law and, therefore, the suit is liable to be dismissed.
2. On the basis of the pleadings of the parties, learned trial Court framed the following issues:- ' Whether the suit is not maintainable in its present form? OPD ' Whether the plaintiff has no cause of action or locus standi to file the suit? OPD ' Whether the impugned ACR remarks are illegal, against facts, void hence ineffective? OPP ' Relief. ' and after closing the evidence of the defendant respondent, decreed the suit vide judgment dated 5-12-1980 and decree prepared and signed on 16-5-1989. The respondent submitted an application for supply of a certified copy of the judgment and decree passed in the suit on 12-12- 1988. A copy of judgment was prepared on 14-1-1989 and was received by the respondent on 11-2- 1989 with a report that a copy of the decree sheet is not appended with the file and therefore copy thereof cannot be supplied. After waiting for some time so that the Court should prepare the decree sheet, the respondent submitted an application to the learned trial Court on 10-5-1989 for preparation of a decree sheet and also submitted an application for supply of certified copy of the decree sheet on 23-5-1989. It appears that the decree sheet was prepared and signed by the learned trial Court on 16-5-1989. Copy of the decree sheet was prepared by the office on 24-9-1989 and was received by the respondent on 30-9-1989. Regular First Appeal was filed by the respondent in the Court of learned District Judge on 1-10-1989 which has been accepted by the learned District Judge, Bahawalpur vide remand order dated 26-2-1990 and the case has been remanded to the learned trial Court for decision thereof afresh, after giving an opportunity to the respondent to lead evidence which according to the learned District Judge had been illegally closed. In the appeal referred to above, the appellant raised an objection of limitation on the ground that the appeal should have been filed within 30 days from the date of the judgment and as the same has been filed after a period of about 11 months, the same is barred by time and hence is liable to be dismissed on this short ground. Learned Addl. District Judge however, has held that no appeal was competent without a copy of a decree sheet which admittedly was prepared and signed on 16-5-1989, and therefore, the period of limitation shall start with effect from that date and calculating the period of 30 days in terms of section 12 of the Limitation Act, the appeal is well within time and at any rate, it is fit case for condonation of delay under the provisions of section 5 of the Limitation Act, therefore, if there is any delay in filing of this appeal, the same is condoned. Aggrieved by this remand order, the plaintiff has filed this first appeal.
2. Mr. M. Abdullah Qureshi, Advocate, has appeared on behalf of the appellant whereas Mr. M.
Shamsher Iqbal Chughtai, Advocate, has appeared on behalf of the respondent.
3. Learned counsel for the appellant has argued that as per provisions of Article 152 of the Limitation Act, the period of limitation is to start with effect from the date of the decree which must coincide with the date of the judgment and even if decree sheet is prepared, subsequently, the period of limitation shall have to be calculated with effect from the date of the judgment which in this case is 5-12-1988 and as the appeal has not been filed within 30 days, the same was liable to be dismissed as being barred by time. In this behalf, learned counsel for the appellant has relied upon cases of East and West Steamship Company v. Queensland Insurance Co. Ltd. PLD 1960 (W.P.)
Karachi 840 and Messrs Hashamally Brothers v. Messrs Netherlands Trading Society PLD 1961 Kar.
231. Learned counsel has further argued that on 11-2-1989 when a copy of the judgment was delivered to the respondent it was indicated that a parcha decree has not been prepared in this case and in this view of the matter, it was the duty of the respondent to apply to the Court for preparation of the decree sheet and as he failed to take any step in the matter upto 10-5-1989, it cannot be said that he was vigilant and as such no concession can be shown to the respondent while deciding the question of condonation of delay. Learned counsel has further contended that even the copies of the judgment and parcha decree have not been collected on the date of preparation of the same and therefore, on that account as well, the appeal is barred by time and there is no sufficient ground to condone the delay. Learned counsel, however, admits that without a parcha decree, no appeal was competent in this case and it was a duty of the learned trial Court to have prepared and signed a parcha decree simultaneously with the judgment rendered by him.
Learned counsel further admitted that there is nothing on the record of the case to show that the copying agency had intimated the respondent about the exact date of preparation of the copies of the judgment and the decree. Learned counsel further admitted that the respondent is a Government Department and for the purpose of applying and collection of the certified copies as well as to take a decision to challenge a judgment and decree by way of appeal, so many functionaries are involved who have to take decisions and to act in the matter. Learned counsel for the appellant has admitted that but for the objection of limitation, he has no objection against the legality and correctness of the remand order passed by the first appellant Court.
3. Learned counsel for the respondent, on the other hand, has vehemently opposed this appeal and has argued that preparation of the parcha decree is the duty of the Court and as parcha decree was not prepared, the respondent could not have filed an appeal challenging the judgment and decree passed in the suit, particularly, when the case is that of a Government Department.
Learned counsel has further contended that immediately after a copy of the parcha decree was supplied to the respondent, the appeal was filed before the first appellant Court and as no date of preparation of the copies was intimated to the respondent, the period consumed in getting the certified copies of the judgment as well as the decree till the date of collection shall have to be counted while deciding the question of condonation of delay in filing of the appeal.
4. I have considered the arguments addressed by both the learned counsel for the parties and have gone through the record. Admittedly, learned trial Court failed to perform its statutory duty to prepare and sign a parcha decree while signing the judgment in the suit. No steps were taken by the learned trial Court to prepare the decree sheet unless and unitl an application was filed by the respondent in this behalf. The decree sheet was not prepared immediately on the date of application but was prepared on 16-5-1989. The respondent submitted an application for supply of a certified copy of the decree sheet on 23-5-1989 which was supplied to the respondent on 30-9- 1989. Next day the appeal was filed. Although the date of preparation of the judgment is 14-1-1989 and it was collected on 11-2-1989, it does not make much difference inasmuch as there being no parcha decree in existence, no appeal was competent. Similarly, there is no evidence on the record to show that the date of preparation of the copy of the decree sheet had been indicated to the respondent. At any rate, the respondent which is a public department collected copy on 30-9-1989 and the appeal has been filed on 1-10-1989. Applying the normal principles for condonation of delay which are applicable in the case as per latest view of the Supreme Court of Pakistan, it cannot be said that the department has been negligent either in getting the decree sheet prepared or in collecting the certified copies and filing the Regular First Appeal. At any rate, a litigant cannot suffer due to the act of the Court. Learned trial Court having failed to prepare and sign a parcha decree without which the appeal could not have been filed, it cannot be said that the respondent was at fault for not filing the appeal within 30 days with effect from the date of the judgment. Cases PLD 1960 Kar.
840 and PLD 1961 Kar. 231 referred to supra cited at the Bar are distinguishable on facts and at any rate do not lay down a universal proposition that delay cannot be condoned in cases where the parcha decree is prepared subsequent to the date of announcement and signing of the judgment.
The case of PLD 1960 Kar. 840 (supra) decides a legal question whereas in case of PLD 1961 Kar. 231 (supra), delay was not condoned on its own facts.
Learned first appellate Court has exercised its discretion and has condoned the delay for valid and lawful reasons. Cases are not to be decided on the basis of technicalities. Parties should be given full opportunity to plead and prove their cases. The impugned remand order is quite fair and just, even learned counsel for the appellant has conceded that he does not challenge the correctness and legality of the remand order except to the extent of the question of limitation.
' Resultantly, I hold that it is a fit case where delay in filing of the appeal could have been condoned which delay stands sufficiently explained. The finding of the learned first appellate Court on the question of limitation, therefore, is upheld. As the remand order has not been challenged on other ground. I see no force in this FA.O., the same is dismissed. The parties are left to bear their own costs.