1. This revision application is directed against the order of District Judge Hazara dated 22-11-75 by which he dismissed the civil appeal of petitioners (as barred by limitation) against the order of Senior Civil Judge, Abbottabad granting mandatory injunction in favour of respondents.
2. Briefly stated, the facts of the case are that respondents were, by a written contract dated 20-6-72, allowed by petitioner to exploit timber in Reserved Forest, Dewan Bela, District Hazara. During the progress of the work, however, respondents are alleged to have committed illicit damage in the forest, and in consequence thereof 'the petitioner asked them to pay a fine of Rs. 72,197.29 as well as Rs. 11,682.63 as agreed consideration for the contract. On receipt of the demand notice, respondents filed against petitioners declaratory suit in the Court of Senior Civil Judge, Abbottabad grieving that the demand contained therein was illegal. And by way of consequential relief, prayed that having already paid the agreed sale-considera--tion of the contract, they be allowed to remove from forest the cut timber.
3. It seems that along with the suit, respondents also filed an application for mandatory injunction, but the same was opposed by petitioner. The learned Senior Civil Judge, however, allowed that application holding that:- ". . . . . .The plaintiffs have been able to show that they have good prima facie case and in case the application for temporary injunction was allowed the balance of convenience also lies in their favour. They would suffer irreparable loss if the timber remains exposed to the vagaries of weather during the current season of rain and snow. I therefore grant the plaintiffs an injunction as prayed for, subject to the condition that they should furnish security to the satisfaction of the Court for the disputed amount of Rs. 83.879.92. Whereafter the defendants would permit the plaintiffs to transport the disputed timber if its price is paid or is to be paid."
4. Against this order, petitioner went in appeal to the Court of District Judge. But their appeal was dismissed not on merit but only on the ground of limitation.
5. The learned Advocate-General argued, on behalf of petitioner, that the appeal before the learned District Judge was doubtless barred by 8 days. But upon the evidence produced in his Court, petitioner was entitled to the condonation of that period. He urged that the learned District Judge had not only misconceived the evidence of parties, but had evidently misdirected himself in regard to the question of limitation. In order to appreciate his contention, it will be proper to take note of the following facts:- It is agreed that the learned Senior Civil Judge had delivered his judgment on 12-12-74; on 6-1-75, petitioners filed an application for a certified copy of the judgment; on 8-1-75 the copy of the judgment was made ready; on 22-1-75 the copy was collected by petitioner and on 24-1-75, he filed in the Court of District Judge appeal against the judgment of trial Court.
6. Now by taking all these dates into consideration, it is clear that ex facie the appeal was barred by 8 days. But the case of petitioner in the Court of District Judge was that right since 6-1-75, when he filed an application for a certified copy of the judgment of trial Court, regular inquiries were made from the Copying Branch on each day but the invariable reply given to the agent of his counsel, namely, Faqir Muhammad, was that the copy was not ready. His case is that when the said agent went to the Copying Branch as usual on 22-1-75, only then the copy was delivered to him, and hence the appeal, filed by him on 24-1-75, would, considering that under section 12 of Limitation Act they would be entitled to all the time spent between 6-1-75 and 22-1-75, be well within time."
7. The learned counsel for respondents, on the other hand, seriously joined issue with the learned Advocate-General, on this point saying that his client was negligent, in that certified copy of the judgment of trial Court was ready for delivery on 8-1-75 but it was not collected by him until 22-1-
75. He, therefore, argued that the dismissal of his appeal as barred by limitation was wholly proper and calls for no interference in this revision-application, even if the impugned order can be said to be illegal.
8. In so far as the last submission of learned counsel for respondents is concerned, it is well-settled that an illegal order by itself cannot be set aside by High Court in its revisional jurisdiction under section 115, C. P. C. But then, and to this the learned counsel agreed, if the Court is shown to have acted in the exercise of its jurisdiction illegally or with material irregularity, in that event the order passed by it would be revisable.
9. Now the evidence on record, which the learned District Judge seems to have taken in his Court, consists of the affidavits of S. Sikandar Shah, Advocate for petitioners, his clerk Faqir Muhammad, of Abdur Rashid Khan, Advocate for respondents and the testimony of Abdul Hamid, copying Agent, D.
10. C.'s office, Abbottabad. S. Sikandar Shah has, is his affidavit, asserted that after 6-1-75, when he filed an application for the certified copy of the judgment of trial Court, every day he had been sending his clerk Faqir Muhammad to the Copying Branch to see if the copy was ready. But his clerk used to inform him that on inquiry from the Copying Branch, he was told that the copy was still under preparation. Faqir Muhammad has, in his affidavit, confirmed the stand of S. Sikandar Shah.
11. As against this, Abdur Rashid Khan, Advocate for respondents has, in his affidavit, repudiated the assertion of Faqir Muhammad, the clerk of S. Sikandar Shah, that he had been regularly visiting the Copying Branch. It seems to me that the learned District Judge has given quite a bit of importance to this affidavit, alb'it implicitly. But in this respect, he was evidently mistaken. Now what Abdur Rashid has said in his affidavit is that he had made inquiries from the Copying Branch only through his clerk Mazhar Hassan. But Mazhar Hassan was neither produced in evidence nor was his affidavit filed on the record. In this view, the learned District Judge should have realized that the affidavit of Abdur Rashid Khan, based as it was on hearsay, had no evidentiary value whatever and should have been ignored. Furthermore, it seems to have escaped his notice that the claim of Abdur Rashid Khan, Advocate was wholly unnatural. It is astonishing that being an advocate for respondents and thus having no concern with the interest of petitioners, he should have deputed his clerk Mazhar Hassan to go to the Copying Branch and find out if petitioners, his counsel or the clerk of his counsel had ever paid a visit there to see if the copy was ready for delivery.
12. The evidence of Abdul Hamid, witness of respondents, would when taken into consideration along with the affidavits of S. Sikandar Shah and his clerk Faqir Muhammad, seem to clinch the issue in favour of petitioner. His evidence is that when petitioner filed on 6-1-75 application for the copy of trial Court's judgment, the case-file was pending in the Court of Senior Civil Judge and therefore he asked him to obtain the special permis--sion of presiding officer, that on the same date the said permission was obtained and consequently certified copy of the judgment was ready for delivery on 8-1-75. But it was not collected by petitioner until 22-1-75.
13. The case of petitioner, however, was that on the receipt issued to him, Abdul Hamid had mentioned no date for the delivery of certified copy. But Abdul Hamid maintained that on the back of it the date of 8-1-75 had been mentioned by him. Now this controversy would have been readily settled by the production of said receipt. But unfortunately it was, according to Abdul Hamid, destroyed according to what he said was the established practice. Faced with this situation, the learned counsel for petitioner, cross-examined him in depth, and he asserted that on all receipts issued by him the date of delivery of the copy was always mentioned. But when confronted with 5 receipts (Exh. PA/1 to Exh. PA/5), he conceded that they bore no such date.. Now this being his evidence, it is obvious that Abdul Hamid was not careful enough to observe the requirement of rule 23, Chapter- C of the High Court Practice and Procedure (which is admitted to be followed by all civil Courts) which reads as under:- "Applicants who apply for copies are to be given a date in writing on which delivery of the copy is to be made. If the copy be not complete on that day, date may be extended from time to time until the copy is ready. The final date given shall, for the purposes of calculation by this rule, be deemed to be the date on which the copy is given."
14. Assuming however, that the said rule was not applicable, Abdul Hamid seems to have, in his evidence, positively deposed to the existence of a very healthy and established practice. But in cross-examination, he had to admit, when confronted with his own receipts (Exh. PA-1 to Exh. PA-5), that the practice in question was not always faithfully observed by him. In this view of the matter, therefore, his evidence could not be taken into consideration in preference to the affidavits of learned counsel for petitioner and his clerk Faqir Muhammad.
15. The learned counsel for respondents, however, argued that by this analysis of the evidence on record, this Court would seem to be arrogating to itself not only appellate jurisdiction, but was evidently trying to substitute its own views for the views of learned District Judge. I am afraid this is not the correct position. The order of learned District Judge would show that after referring to the evidence of parties respecting which, however, he gave no finding, he abruptly reached the following conclusion:- "The record reveals that the appellants have made no efforts to produce any satisfactory evidence showing that they had been asking for the copy after 6-1-75. The learned counsel for the appellant urged that although the copy of the order was ready for delivery on 8-1-75 but still the collection of the copy by the appellants on 22-1-75 does not suggest that the appellants had a notice of the preparation of the certified copy. He also urged that it was the duty of the copying department to have informed the appellants or to have sent the certified copy to them otherwise. As held in the case reported as PLD 1968 Pesh. 85 the copying department is under no obligation to inform applicants who apply for certified copies. Similarly there is also no procedure for sending the copies by the copying department."
16. Without saying anything in regard to the last part of his order, (for which the learned District Judge has relied on PLD 1968 Pesh. 85), as the learned Advocate-General did not address me in that connection, I have not been able to appreciate as to what other "satisfactory evidence" was the petitioner expected to produce in support of his case. The only conceivable evidence in that connection, which the petitioner could be expected to produce, would be that of his counsel and his clerk. And the same was successfully brought on the record of the case. Furthermore, in his application under section 5 of Limitation Act, petitioner had asserted the, same position as taken by his counsel and his clerk Faqir Muhammad And this, in the absence of any other evidence, should have sufficed to hold that petitioner had successfully discharged his burden. It is obvious, there--fore, that the learned District Judge had wholly misdirected himself in regard to the evidence of parties. And hence he must be held to have exercised his jurisdiction with material irregularity.
17. In regard to the evidence of Abdul Hamid also, the learned District Judge seems to have misdirected himself. He should have realized that petitioner was more than vilgilant in pursuing his case, in that after filing application on 6-1-75 for certified copy, he was told by Abdul Hamid to obtain the special permission of presiding officer, as the case-file was still pending in his Court, and he succeeded to obtain the said permission on the same date. Now by this time, when he had already spent about 24 days, perhaps in departmental proceedings seeking permission of authorities to file appeal in the Court of District Judge, it is presumable that petitioner bad- pursued his case with vigilance. And in this re3pect, the admission of Abdul Hamid would support that presumption.
18. This being the evidence on record, it is clear to me that on the receipt issued to petitioner by Abdul Hamid, the date of delivery of certified copy, was not mentioned as also that Faqir Muhammad had been regularly visiting the Copying Branch, but was always told that the copy was not ready until it was finally delivered to him on 22-1-75. In this view, the case of petitioner would be covered by the ratio of Supreme Court's judgment in the case of Syed Faiz Ali Shah v. Chief Administrator of Auqaf, Lahore (1974 SCMR 33) from which the following dictum may be reproduced with advantage:- "We cannot also ignore the fact that the appellant might well have been misled into thinking that the copy would not be available during the vacation of the High Court, particularly, since the copying section had not given him any date for the delivery of the copy."
19. This appeal is therefore allowed, the impugned order of learned District Judge is set aside and it is directed that the case would go back to him for the hearing of petitioner's appeal on merit.
20. Under the circumstances, however, parties would bear their own costs.
21. S. Q.