CH. MUSHTAQ AHMAD KHAN, J.- This judgment will dispose of RSA- 175/88, Civil Revisions No. 1584, 1585 and 1586 of 1988, inasmuch as all these cases involve similar questions of facts and law.
2. Briefly stated facts of the case out of which these cases have arisen are that the respondents filed suits for recovery of money against the petitioner. These suits were decreed vide judgment and decree dated 26.10.1986. The appellant who is a statutory body submitted an application for grant of certified copy of the judgment and decree rendered by the learned trial Court on 25.11.1986.
The copying agency issued a chit and fixed 29.11.1986 as a date for collection of the certified copies.
It appears that the copies were not ready on 29.11.1986 and were ultimately made ready for delivery on 18.12.1986. There is nothing on record from which it could be shown that beyond 29.11.1986, any date was given to the appellant to collect the certified copies of the judgment and decree passed by the learned Trial Court. These copies appear to have been delivered on 20.1.1987 to the appellant. The appellant filed appeal against the aforementioned judgment and decree before District Court Sheikhupura on 21.1.1987. Office made a report that the appeal is within time.
Resultantly, it was produced before the learned District Judge for admission on 22.1.1987. The appeal was admitted to regular hearing without there being any objection either by the officer or by the Court that the same is harred by time. During the pendency of these appeals, the judgment and decree passed by the learned trial Court having been incorrectly prepared was amended on 31.1.1987, as a result whereof, the Deputy Commissioner, who was a defendant in the suit was also shown as defendant in the decree sheet. A certified copy of this decree sheet was applied for on 5.2.1987, which was delivered to the appellant on 11.2.1987 and was placed on record of the learned lower Appellate Court. During the pendency of these appeals, the appellant filed an application under section 5 of the limitation Act seeking condonation of delay in filing of the appeal on the ground that as no final date was given to the appellant for preparation and collection of the judgment and decree rendered by the learned trial Court, therefore, the period of limitation is to be collected taking in view the date of delivery of the decree-sheet and not from the date of preparation thereof, and as such, the delay in filing the appeal, if any, may be condoned, inasmuch as, the appellant/petitioner did not receive any information with-regard to the preparation of the copy, inspite of the fact that the representative of the appellant had visited the copying department. It is stated that it is only on 20.1.1987 that the Head Clerk Copying Agency told the representative of the appellant that the copy is ready and thereafter certified copy was immediately obtained and the appeal was filed, and, if there is any delay, the same may be condoned. This application has been accompanied with an affidavit of Chairman Zila Council, which, however, has not been verified by an Oath Commissioner. Learned District Judge vide judgment and decree dated 9.7.1988 dismissed the appeals as barred by time holding that the appellant has failed to explain the delay of each and every day of delay in filing of the appeals and at any rate it was his duty to have explained and proved that beyond 29.11.86 his 'perokar' has been visiting the Copying Agency, but he could not know the exact date of preparation of the copy and hence the period of limitation will start with effect from the date of preparation, and as such the appeal is barred by time and there is no sufficient ground for condonation of delay. These judgments and decree in all the four cases have been challenged in these cases.
3. Syed Kaliem Ahmad Khurshid, Advocate, learned counsel for the appellant/petitioner has contended that the appellant is a statutory body and it stands established that the date of preparation was never conveyed or notified to the appellant. Therefore, the period of limitation is to be calculated taking into consideration the date of delivery of the certified copy and not the preparation thereof. Learned counsel contends that the appeal was in fact within time and if all it is considered to be delayed, it is a fit case where the delay should have been condoned. Learned counsel further contends that the final decree shall be deemed to have been passed on 31.1.1987, when the appeals before the lower Court was already pending, and therefore, it cannot be said that the appeal is barred by time.
As against the above arguments, addressed by the learned counsel for the appellant/petitioner, Raja Abdul Razzaq, learned counsel for the respondents has argued that as per chit appended, by the appellant/petitioner alongwith the application seeking condonation of delay, the date for collection of the copy was fixed as 29.11.1988, and, as there is no explanation of even a contention as to whether the appellant visiting on that date and has been visiting the Copying Agency thereafter, no indulgence could have been shown to him and the period of limitation shall be counted taking into consideration the period of preparation of the decree sheet and not the delivery of the copies, and, hence the negligence on the part of the official of the appellant being not a ground for condonation of delay. Reliance in this behalf has been placed on case of Cantonment Board, Kharian Cantt, through Executive Officer. Versus Muhammad Shafi (P.L.D. 1991 S.C. 400). It is further contended that the period of limitation is not to start from the date of the amendment in the decree sheet inasmuch as only the name of the party was added on 31.1.1987 and as such no material amendment was made, hence the appeal was clearly barred by time and has rightly been dismissed as such by the Courts below.
4. I have considered the arguments addressed by both the learned counsel for the parties and have gone through the record. Admittedly, the appellant has filed an application for supply of certified copies of the judgment and decree passed by the learned trial Court within limitation. As per chit issued by the Copying Agency, the copy had to be collected on 29.11.1986. The copy was not ready for delivery on the said date. The chit does not show that any further date was given by the Copying Agency after 29.11.1986, for collection of the certified copies, therefore, the presumption is that the appellant was never informed either about the date of preparation or about the date of delivery of the certified copy. The appellant of his own has been pursuing the matter and succeeded in obtaining the certified dopy on 20.1.1987. Therefore, it cannot be said that the ratio of the case cited hy the learned counsel for the respondent shall apply to these cases, inasmuch as, the same is distinguishable on facts and rather supports the case of the appellant.
5. The appeal was filed before the learned District Judge on 21.11.1987. The Office held it to be within time. It was admitted to regular hearing and the learned District Judge also did not object to the admission of the appeal on the question of limitation. In such a situation, if subsequently it was to be dismissed as being barred by time, at least an opportunity had to be given to the appellant to explain the cause of delay. This was admittedly not done. The appellant was not given au opportunity to explain the delay either by summoning the record of Copying Agency or by getting the statement of the- 'perokar' recorded. Therefore, it cannot be said that while deciding the question of limitation, the learned First Appellate Court has discharged its lawful duty. A litigant should not suffer due to the action or in-action on the part of the Court. The appellant was made to believe that the appeal is within time and the moment it was realized that there is a delay in filing of the appeal, an application seeking condonation of delay was filed which is appended with an affidavit of Chairman Zila Council which though not verified by the Oath Commissioner doe na a weight as being a statement made by a public Officer. The statement has not been sufficiently controverted or proved as false by the respondents.
The learned First Appellate Court has not granted any weight to this statement and has simply stated that it is not verified affidavit. It is established law that the departments as well have to be dealt with equally alongwith other litigants. There does not appear to be any wilful lapse on the part of the appellant to collect the certified copies of the judgments and decree passed by the leamed trial Court. Admittedly, the decree was also amended on 31.1.1987 and in fact, the period of limitation should start with effect from that date. The initial decree being defective, amended decree will take its place and the period of limitation will start with effect from that date and at least the benefit of section 5 of the Limitation Act shall be given to the appellant to challenge such a decree.
6. In view of the above, it was a fit case where the delay should have been condoned. The learned First Appellate Court has exercised his jurisdiction and discretion illegally and with a material irregularity.'
Resultantly, I accept this appeal as well as the civil revisions referred to above, set aside the judgments and decree rendered by the learned First Appellate Court and remand the appeals to him for decision of the same on merits. The delay in filing of the appeals before the First Appellate Court is condoned. The parties are left to bear their own costs.
7. As there are old matters, the appeals which shall now be considered pending before the learned District Court shall be decided within a period of three months with effect from the date, a copy of this order is received by the court concerned.