This is an office reference which involves the interpretation of the rules of this Court for the preparation of certified copies of documents. In filing an appeal, in addition to the period of limitation prescribed for that appeal, the appellant is entitled under section 12 of the Limitation Act, 1908 to exclude "the time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed." Therefore if an application for a certified copy of the impugned order is filed within the pre--scribed period of limitation, the applicant will be entitled to add to that period of limitation the time taken between the date of his application for a certified copy and the delivery to him to that certified copy, provided he has prosecuted his application with reasonable diligence and no delay has been caused in obtaining that copy by any negligence on his part. But the preparation of certified copies is the responsibility of the Court, and the procedure for their preparation is regulated by the rules applicable to the various Courts. The procedure for this seat of the West Pakistan High Court is regulated by the rules of the former Chief Court of Sind which were framed in 1945.
The relevant rules are contained in Chapter XII of the said Chief Court Rules. These rules state that after an application for a certified copy has been granted, the Head Copyist shall, under rule 127 " ascertain the amount of copying and comparing fees, when leviable, according to the scale prescribed in Chapter I, in Appendix C and enter them on the application and com--municate them to the applicant." Rule 128 is also relevant and it states: 128 (1) No copy shall be commenced until the estimated amount of the copying and comparing fees when leviable have been deposited with the Head Copyist; Provided that the Registrar may sanction the preparation of copies costs of which are to be recovered by value payable post.
(2) If the estimated amount of fees and, in the case of a certified copy, also the requisite stamp is not deposited within seven days from the date of the communication under sub-rule (1) of rule 127 to the applicant, the application shall be rejected and note to that effect made in column No. 24 of the Register of Applications for Copies.
2. In the instant case the applicant, who is a defendant in a suit on the original side of this Court, had applied for a certified copy of an order of a learned Single Judge of this Court passed on 22nd December 1967. He had filed his application for a certified copy on the same day, and that application was granted the next day. Thereafter, it was the duty of the office of this Court to forward the file of the case to the Head Copyist, on receipt of which the Bead Copyist had to ascertain the copying and comparing fees for preparing the certified copy and communicate them to the defendant under rule 127. Unfortunately, although the defendant had applied for a certified copy in December 1967, the case had not been forwarded to the Head Copyist even in June 1968, when the Court closed for the summer vacation. Learned counsel for the defendant has stated that until this Court closed for its vacation, enquiries were regularly made to find out whether the fees for the preparation of the certified copy had been estimated or not and he was informed that the file of the case had not been received by the Copying Branch. It is not disputed that the statement of learned counsel is correct. This Court was closed for its long vacation nine weeks from the 3rd June 1958, but some time during the vacation, the file of the case was forwarded to the Copying Branch. The Head Copyist immediately ascertained the amount for the copying and comparing fees under rule 127 and entered them on the application of the defendant, but he did not take steps to inform the defendant of the same. Then. As the defendant did not pay these charges within seven days, the Head Copyist pur--ported to reject the defendant's application for certified copy after the expiry of seven days from the day on which he had esti-- mated them. The defendant was not aware that the Head Copyist had estimated the copying and comparing charges, but on 8 August 1968, the case was- fixed before the Registrar O. S. The defendants' Advocate appeared before the Registrar O. S. And took advantage of this opportunity to inspect the file of the case. On inspection he found that the application for a certified copy had been dismissed under rule 128 for non-payment of the copying and comparing charges. He then filed another application on 12th August 1968, for a certified copy and a certified copy is now available. But unless the certified copy is granted on his first application of 22nd December 1967, any appeal by defendant against the Court's order of 22nd December 1967, will be time-barred.
3. It is submitted that the Head Copyist never informs litigants under rule 127 of the Chief Court Rules that the copying and comparing charges have been estimated and it is the litigant who always finds out from him whether he has estimated the requisite charges. This practice is based on an old judgment of the Sind Judicial Commissioner's Court reported in Tolaram v. Jaffer Khan (39 I C 464The defendant has contended that this practice is contrary to the rules of the Chief Court and is therefore illegal. The case has therefore been referred to me for determina--petition of this contention and, as the question raised was of importance both to members of the Bar and the litigant public, I had issued notice to the plaintiff's counsel and also heard his arguments.
4. Learned counsel for the defendant submitted that in the events that happened, rule 127 imposed a mandatory duty on the Head Copyist to inform him of the copying and com--paring charges, therefore his application was illegally rejected as time-barred. Alternatively he submitted that even if he was required to pro3ecute his application for a certified copy, he had done so with due diligence and the Head Copyist acted illegally in estimating the copying and comparing charges during the vacation and dismissing the application on the opening day of Courts. On the other hand, learned counsel for the plaintiff submitted that on a proper interpretation of Chapter XII of the rules of the Chief Court, the Head Copyist was not under any obligation to inform the defendant of the copying and comparing charges and the defendant had to verify the same from the Headth Copyist. He also submitted that the rejection of the defendants' application was in accordance with the long established practice of this Court which should not therefore be disturbed.
5. I shall first consider the submission of learned counsel for the plaintiff that on a proper interpretation of the rules, the Head Copyist was not required to inform the defendant that he had ascertained the copying and comparing charges. This argument was based on the difference between the provisions of rule 127 and rule 135. I have quoted the relevant pro--visions of rules 127 and 128 in para. 1 above. Rule 135 states that after a certified copy of any order is ready for delivery, a list of copies ready for delivery shall be posted on the Notice Board of the Court. Learned counsel submitted that rule 135 makes ex--press provision for communicating the fact that certified copies are ready by posting a list of such copies on the notice board, but rule 127 does not contain any similar provision. It merely states that the Head Copyist shall communicate the fees estimated to the applicant for a certified copy. According to learned counsel, this difference between rule 127 and rule 135 leads to the inference that communication under rule 127 means that the Head Copyist has to enter the amount of copying and comparing fees on the application for the certified copy and to inform the applicant of the certified copy of the fees estimated only when he comes to find out the fees estimated by him. But rule 127 not only imposes a duty on the Head Copyist to enter the fees estimated on the application for a certified copy, but also to communicate them to the applicant. If the intention of the rules had been that the applicant had to verify the fees from the Head Copyist, after the Head Copyist had entered them on the application, the rules would not have directed the Head Copyist to communicate the fees estimated to the applicant after entering them on the application. It is true that unlike rule 135, rule 127 does not expressly direct the Head Copyist to 'publish a notice on the Notice Board of the Court a list of applications in which he has estimated such fees, but this only means that he is permitted to use his discretion about the manner. In which be has to inform the applicant. It does not relieve him of his mandatory duty to inform the applicant, nor does it prevent him from publishing on the Notice Board of the Court, a list of application on which he has estimated fees under rule 127. The practice of the Head Copyist is therefore in disregard of the rules of this Court.
6. I am fortified in my opinion by a judgment of a Division Bench of this Court reported in Gul Muhammad v. Allahditta (PLD 1960 Lah. 443). This judgment relates to the interpretation of the relevant rules of the Lahore Seat of this Court. As, in the case of the rules of this Seat, originally, the rules in Lahore did not expressly state that when a certified copy of an order was ready for delivery, intimation of this had to be communicated to the applicant. But by an amendment in 1960, the obligation to communicate that a copy was ready for delivery was imposed on the, Court. These Rules therefore are in pari materia with the Sind Chief Court Rules. Speaking in reference to these amended rules, Mr. Justice Kayani, the Chief Justice, observed at page 445 as follows :- "In other words, it is implied that the copying agency will inform the applicant to take delivery of the copy on a certain date, and this amendment is evidence of a general feeling in this Court that it will be unreasonable to expect an applicant to call for a copy morning and evening every day so as to ascertain whether it is ready. It may so happen that although at three o'clock in the afternoon a copy is not ready, it is completed some time after four o'clock; but if the applicant had called at three o'clock he would have been sent away without the copy, and on the following morning his appeal might be time--barred.
It is true that the observations of the Chief Justice relate to the obligation to communicate the fact that a copy is ready for delivery and not the communication of the fees estimated, but the observations are relevant to the proper construction of the word "communicate" which also occur in rule 127 of our rules: I am in respectful agreement with these observations, and this judgment would have sufficed to determine the reference before me. However, in his judgment the Chief Justice has referred to the judgment of the Sind Judicial Commissioner's Court in Tolaram v. Jafer Khan on which the practice of the Head Copyist is based, and has distinguished that judgment; therefore it is necessary for me to examine that judgment in order to consider whether it is still good law.
7. The dispute in Tolaram v. Jafer Khan referred to a copy of a judgment obtained in August 1914.
The period of limitation was 90 days, the preparation of the copy had taken two days and excluding the Court holidays, the appeal was filed on the 93 days. The contention of the appellant was that the appeal was in tune because he required a day to collect the certified copy that had been prepared. In a very brief judgment the Court rejected this plea and held that the appeal was time---barred. Fawcett A. J. C. Stated:- ---The copies were certified to have been ready for delivery on. 31st July 1914 and the ordinary presumption on which the Court must act is that the appellant could have obtained these copies on that day if he acted with due diligence.--- Hayward, J. C. Also took the same view and further observed that, as the Sind Civil Courts Circulars did not contain any express provision that notice had to be given by the Court of the fact that a copy was ready for delivery, the appellant could not exclude any time taken for finding out whether the copy was ready or rest.
This judgment clearly implies that the applicant for a certified copy is negligent unless he makes inquiries about his application every day. It is true that this judgment relates to the delay in collecting a certified copy of an order of this Court, whilst the case before me relates to the alleged delay in payment of fees on an application for a certified copy. However, if the view of the learned Judges is correct, the applicant for a certified copy has to be equally vigilant about finding out that the copying and certifying charges have been estimated. This means in the instant case, that the defendant could have made inquiries from the Head Copyist every day from 23rd of December 1967, to 27th July 1968 about his application. With very great respect to the learned Judges, I demur to the view that section 12 of the Limitation Act, 1908 imposes so onerous an obligation on an appellant, who has to obtain a certified copy of Court's order, before he can file an appeal. It is settled law that an appellant is entitled under section 12 of the Limitation Act, 1908 to all the time that is reasonably required for obtaining a certificate copy of the Court's order against which he wishes to fit: an appeal. The appellant is under an obligation to prosecute his application with reasonable diligence, but I do not think this necessarily means that he should put aside all other work and make inquiries about an application for a certified copy every day. Therefore, with very great respect to the learned Judges who decided Tolaram's case, I am not able to agree with their view that an applicant is negligent if he does not make enquiries every day about his application for a certified copy.
8. Additionally, when the rules of the Chief Court were framed, the framers were aware of the judgment in Tolaram's case, yet they have expressly provided under rule 135 that the Head Copyist shall publish on the Notice Board of the Court a list of certified copies ready for delivery. This provision was clearly intended to abolish the principles laid down in Tolaram's case. Viewed in this background, the obligation expressly imposed on the Hea3 Copyist under rule 127 to inform the applicant of a certified copy that the certifying and copying charges on that application have been estimated clearly mean that the Head Copyist shall take overt steps to inform the applicant of a certified copy of the fees estimated, and the Head Copyist does not discharge that obligation by merely entering the estimated fees on the application. It is not for me to lay down the manner in which the Head Copyist has to carry out the provisions of rule 127, but it seems to me that he can conveniently do so by publishing on the Notice Board of the Court a list of applications in which he has estimated the copying and certifying charges.
9. The Head Copyist hag erred in dismissing the defendant's application on 23rd December 1967, for a certified copy of this Court's order of 22nd December 1967. The certified copy of that order