MUHAMMAD BASHIR KHAN JEHANGIRI, J.--This appeal by special leave is directed against the judgment of a learned Single Judge of Lahore High Court, Lahore, dated 12-3-1995 whereby Constitution Petition jointly filed by Anjum Farooq and six others, candidates for the posts of Station Master Group Students, in the Pakistan Railways, was allowed.
2. Brief facts forming the background of the controversy duly noticed in the leave granting order are that after conducting the written test, the Divisional Superintendent, Pakistan Railways, Lahore, prepared a list of thirty candidates for the vacancies in the Station Master's Group who had been selected for the appointments. In order to cater for possible dropouts a waiting list of ten candidates was also prepared wherein the respondents were also included. The candidates appearing in both the lists participated in the training. The performance of some of those on waiting list was better than those who had been selected to fill the vacancies. A proposition emerged as to whether those who were on waiting list but had fared better than those who were selected for filling the vacancies should be offered appointment in preference to the latter. The functionaries of the Pakistan Railways. It appears, decided to stick to the list of selected candidates.
The respondents challenged the departmental decision in the Constitutional jurisdiction of the High Court. A learned Single Judge while accepting their petition issued a direction, inter alia, that the appointments should be offered on the basis of the list of merit prepared by authorities of the Walton Training School.
3. Leave was granted in paragraphs 3 and 4 of the order passed by a learned Division Bench of this Court on the 8th of October, 1995, which reads as under: "Two questions arise in this petition. The first is whether the petition in this Court has been tiled in the. It is to be noticed that the last day for this purpose was 11th May, 1995. The Court was closed on 11th, 12th and 13th May, 1995 on account of Eid-al-Azha. Thus, the petition could be filed on 14-5- 1995. By this date, however, the petitioners had not ever applied for a copy of the judgment. They did so on 14-5-1995. It was ready for delivery and was received by them on 13-7-1995. On that very day they filed this petition in the Court. The question for consideration is whether the petitioners were entitled to deduct the period from 14-5-1995 to 13-7-1995, in computing limitation. The learned counsel for the petitioners says that he was entitled to do so but the learned counsel for the respondents has argued to the contrary. This is an important question and it can be taken at the the when the main appeal comes up in Court for hearing.
On merits on behalf of the petitioners it is contended that the respondents who were merely on a waiting list could not claim preference in the matter of appointment over those who had been actually selected merely on the ground that they had done better during the training. This question needs examination."
4. It would be noticed from the above narration that last day for filing the petition for leave to appeal before this Court admittedly fell on the 11th of May, 1995, but it was closed on I lth, 12th and 13th of May, 1995 on account of Eid--ul-Azha. It is conceded that petition could be filed on 14th May, 1995, when Court re-opened. But by this date the appellants had not even applied for copies of the impugned judgment. The first proposition falling for determination is whether the appellants were entitled to deduct the period from 14-5-1995 when application for copies was moved till -7-1955 when it was prepared/delivered to them.
5. Mirza Saeedur Rehman, learned counsel for the appellants, contends that the period during which this Court remained closed should be excluded under section 4 of the Limitation Act, 1908, which provides that where the period of limitation prescribed falls on a day when the Court is closed, the application for obtaining copy of the judgment to be impugned may be made on the day when the Court re-opened.
6. Conversely Chaudhary Ali Muhammad, learned counsel for the respondents, argued that it was not competent for the appellants to pray for exclusion of period of limitation. According to Ch. Ali Muhammad, the appellants were not entitled to deduct the period from 14-5-1995 to 13-7-1995 on the ground that the appellants had applied for copy of the judgment on 14-5-1995 i.e. After the period of limitation for petition for leave to appeal, falling on 12-5-1995 which is 60 days, had expired notwithstanding the fact the Court remained closed from 11-5-1995 to 13-5-1995 on account of public holidays. In support of this proposition Chaudhary Ali Muhammad placed reliance on Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others (AIR 1935 Privy Council 85), Umedsingh Bahrain Raghubanshi v. Shankerlal Jhanaklal and others (AIR 1948 Nagpur 63) and Kanhaiyalal v. Ramkishan and others (AIR 1966 Madh. Pra. 340).
The proposition is well-settled by now that section 4 of the Limitation Act, 1908, does not extend the period of limitation prescribed under the law; it simply permits a suit, appeal or application to be filed on re-opening of the Court, if the period of limitation expires on a day when the Court is closed. Section 4 does not extend the period of limitation, but merely provides a device to overcome the closure of the Court on the day the limitation expires.
8. Section 14(2) of the Limitation Act was invoked by the learned counsel for the appellants in order to overcome the hurdle of limitation. Section 14(2) provides:-- "In computing the period of limitation prescribed for any application, the the during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court appeal, against the same party for the same relief, shall be excluded where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. "
9. Section 14(2) ibid was construed by the Privy Council for the first the in Maqbul Ahmad's case (supra) in the following paragraph of the report:-- "---------where there is ground for excluding certain periods under section 14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to he added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained. "
10. The ratio deducible from the basic authority of Maqbul Ahmad (supra) is that whereas section 4 merely provides for launching of a proceeding on the day on which the Court first reopens, if the Court was closed on the day on which the period for starting the. Limitation expired; that section 14 and similar sections provides for exclusion of certain period while computing the prescribed period; the effect in the latter case is that the days thus liable to be excluded have to be added to what is primarily the prescribed period. In that case (Maqbul Ahmad's case) the plaintiff obtained a preliminary mortgage decree on June 7, 1920. The period of limitation for applying for final decree was three years. The plaintiff applied for final decree on June 20, 1923, as the Court was closed for vacation, till that date the period of limitation having expired on June 7, 1923. He, however, applied in a wrong Court, though bona fide. It was pending in that Court for forty-eight days and thereafter, he withdrew that and submitted in the right Court on August 6, 1923. Their Lordships held that the application was barred as the period of three years and forty-eight days expired on July 25, 1923 and the plaintiff-appellant was not entitled under section 4 to exclude period of the vacation.
(Underlining by us is provided for emphasis).
11. In Umedsingh Baliram Reghubanshi v. Shankerlal Jhanaklal and others (AIR 1948 Nagpur 63), a case from Indian jurisdiction, it was laid down that where the period of limitation prescribed for application under Order XXI, Rule 89, C.P.C. Expires on a day when the Court is away on casual leave it is imperative on the applicant to file his application and make necessary deposit on the very next day on which the Court is opened. He is not entitled to add to the statutory period days on which Court remained closed.
12. The case of Kanhaiyalal (supra) again from Indian jurisdiction of Madhya Pradesh lends full support to the objection of the office in this case that the petition for leave to appeal was barred by 60 days (not 63 days as per office note). The learned Single Judge while copiously quoting from Maqbul Ahmad's case observed:-- "It is clear from the terms of section 4 that it can be invoked only in those cases where a period of limitation is prescribed for 'any suit, appeal or application under the Limitation Act. Where such prescribed period expires on a day on which the Court is closed then the proceeding may be launched on the day that the Court reopens. Now no period of limitation is prescribed for submitting an application for a copy under the Limitation Act. Section 4, therefore, is inapplicable to an application for a copy of the judgment and decree.
Under section 12 in computing the. Period of limitation prescribed for an appeal the day on which the judgment was pronounced and the the requisite for obtaining a copy of the judgment and decree has to be excluded. Since the the requisite for obtaining copies of the judgment and decree are liable to be excluded in making the computation it is clear that for so doing the copies of judgment and decree must be applied for while the prescribed period has not elapsed."
13. The learned counsel for the respondents was right to invoke section 12(2) of the Limitation Act in this case. In this context he had invited our attention to the law laid down by Anwarul Haq, J. As his Lordship then was, in Ziaul Haq v. Dr.A. Brabant and another (PLD 1962 (W.P.) Peshawar 21) which is reproduced hereunder:-- "
10. It is clear, therefore, that in the present case the period of limitation expired on the 19th of August, 1961, but as on that date and the following days,, of the month of August the Civil Courts were closed, under section 4 of the Limitation Act the respondents were entitled to present their appeal on the day the Courts reopened, namely, the 1st of September, 1961. But the period of limitation did not stand extended up to the 1st of September, 1961. The the spent in obtaining a copy of the order appealed against could only be excluded under section 12 of the Limitation Act if the application for the copy had been made before the expiry of the period of limitation: and not after such expiry, as was done in the present case. As the appeal was presented not on the 1st of September, but on the 5th of September, 1961, it must be held to be barred by the. "
14. The record of the case would indicate that the impugned judgment of the Lahore High Court was delivered on 12-3-1995. The prescribed period of 60 days expired on 11-5-1995. The petition for leave to appeal was filed on 14-7-1995. The appellants were, therefore, not entitled to the exclusion of the period from 11th to 13th May, 1995, the days on which this Court remained closed. We are inclined to approve the construction put on sections 4 and 12- of the Limitation Act, 1908, in Ziaul Haq's case (supra) from Peshawar jurisdiction reproduced earlier and reiterate with authority that the the spent in obtaining a copy of the order appealed against could only be excluded under section 12 of the Limitation Act, 1908, before the expiry of period of limitation: and not after the expiry, as is sought to be done in the instant case. The other words since the the requisite for obtaining copies of order are liable to be excluded in making computation it is clear that for so doing the copies of the order, judgment and the decree must be applied for while the prescribed period has not elapsed.
15. We are, therefore, of the considered view that the appellants were not entitled to deduct the period from 14-5-1995 to 13-7-1995 in computing limitation. As the appeal is hit by limitation it is not necessary to consider the contentions on merits on which leave to appeal was also granted.
16. The appeal is, therefore, dismissed on the ground of limitation. We I would, however, leave the parties to bear their own costs.