' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above titled appeals arise out of the single judgment of the Shariat Court, we propose to dispose of the same by this single judgment.
2. The brief facts giving rise to the above-entitled appeals are that Mst. Shaheen Akhtar filed a declaratory suit in the Court of Family Judge, Kotli, alleging that she was not married to Muhammad Alam and in fact she was minor when the so-called 'Nikah' is alleged to have taken place; according to her, the 'Nikahnama' relied upon by the defendant is forged one. In alternative, she sought a decree on the basis of exercise of right of option of puberty; and lastly on the ground of Khulah'. Muhammad Alam, appellant, on the other hand, filed a suit for the restitution of conjugal rights alleging that Mst. Shaheen Akhtar was his married wife but she refused to live with him as his wife without any valid reason.
3. The Family Court consolidated both the suits and after taking necessary proceedings, passed a decree of dissolution of marriage in favour of Mst. Shaheen Akhtar on payment of Rs,500, the dower money, plus Rs,91,970, the price of ornaments which were allegedly given to her by her husband while dismissed the suit filed by Muhammad Alam. Both the parties preferred appeals to the Shariat Court. The learned Judge in the Shariat Court, without going into the merits of the appeals, dismissed the same as being time-barred. The learned Judge in the Shariat Court has observed that Mst. Shaheen Akhtar filed the appeal after 59 days of the judgment of the Family Court while Muhammad Alam filed appeal after the expiry of 51 days, whereas the same should have been filed within thirty days of passing of the impugned judgment.
4. Mr. Muhammad Ilyas, Advocate, the learned counsel for Mst. Shaheen Akhtar, appellant, has argued that the Shariat Court has committed an error in dismissing the appeal filed by Mst.
Shaheen Akhtar as being time-barred. He has argued that in fact the learned Judge in the Family Court orally announced the judgment and wrote the same about one month afterwards. He has referred to the application for condonation of delay, dated 20-2-1998 and affidavit filed by him on 2-12-1998 wherein he has deposed that not only the judgment was orally announced by the Judge Family Court and was written one month afterwards but also sworn in that he had applied for the copies of judgment and decree on 27-12-1997 along with requisite stamps but the- stamps were misplaced somewhere by the concerned clerk and, thereafter, he was directed to furnish the same afresh. Consequently, he again furnished the stamps on 13-2-1998. He has argued that the delay in ,filing appeal was the result of non-writing of the judgment by the Judge Family Court in time and due to the misplacement of the stamps which were earlier supplied with the application. He has submitted that the learned Judge in the Shariat Court has ignored the above reflected circumstances and, thus, declined to condone the delay in filing appeal without applying his mind.
He has further submitted that the learned Judge has not taken into account the fact that there is no cross-affidavit refuting the averments made by Mst. Shaheen Akhtar, appellant, and her counsel. Thus, the learned counsel has argued that it was not in the fitness of things to refuse the condonation of the delay to the appellant in filing the appeal. He has argued that even otherwise, neither any date was fixed by the copying officer for delivery of the copies nor the appellant or her counsel was promptly informed that the stamps supplied by her had been lost or . That the copies applied for were ready for delivery and she should collect the same after supply of the stamps. The learned counsel has argued that where no time has been fixed for the delivery of a copy, or the concerned party is not informed that it is necessary to supply the stamps or a part of the same along with the application, the time which is to be excluded under Article 12 of the Limitation Act would be reckoned from the date of the application for copy and not from the date of the supply of the stamps. The learned counsel has also referred to the instructions issued by the Azad Jammu and Kashmir High Court in 1965; para. (vi) of the same deals with the supply of the copies applied for and others. It stipulates that the date should be fixed by the copying officer for the delivery of the copy applied -for. It may be observed that the said instructions were issued by the High Court under the provisions of the Code of Civil Procedure. It has not been shown that the said instructions have been adopted by the Azad Jammu and Kashmir Shariat Court. Thus, the same cannot be considered for resolving the controversy in the instant case. It may be stated that no rules with regard to the issuance of the copies and others have been framed by the Azad Jammu and Kashmir Shariat Court as has been done in case of various High Courts in Pakistan. The learned counsel has also submitted the following authorities in support of his contentions:- ' In case reported as Muhammad Omar v. Dr. Amina Ashraf (1983 CLC 1235), the facts were that there was an endorsement on the application for supplying copies in terms 'stamps not supplied'.
However, the applicant was not called upon to supply the stamps. It was observed that as the requirement of the supply of the stamps was not communicated to the applicant and no pasting was made on the notice board after the preparation of the copy calling upon the applicant to supply the stamps, the time requisite for obtaining the copy should be reckoned from the date of obtaining delivery of the copy.
' In case reported as West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (PLD 1973 SC 222), it was observed that under section 12 of the Limitation Act, while reckoning the time requisite for obtaining the .Copy, the time falling between the date when the application was made and the date when the copies were ready, can be further extended if such further delay is due to the carelessness of the office in informing the applicant about the date on which the copy was ready for delivery.
' In case reported as Madan Singh v. Puran Singh (AIR 1926 Lahore 84), it was held that as the office did not inform the applicant about the date when the copy could be ready for delivery, the delay was condoned under section 5 read with section 12 of the Limitation Act observing that no party should suffer due to mistake of the Court or its officer.
5. In reply, Mr. Riaz Tabassum, Advocate, the learned counsel for Muhammad Alam, did not controvert that the judgment was announced orally by the Family Court and the same was written later on after quite some time. He also did not seriously controvert the contents of the application filed on behalf of Mst. Shaheen Akhtar for the condonation of delay and the affidavit sworn in by her counsel.
6. It may be observed here that no rules have been referred to by the learned counsel for the parties governing the matter relating to the issuance of the copies by the Shariat Court. The instructions relied upon by the learned counsel for Mst. Shaheen Akhtar issued by the High Court have not been adopted by the Shariat Court. However, the general principle of law is that nobody should suffer for the mistake of the Court or its officer. In the instant case, it has not been controverted that the judgment was orally announced and was written by the learned Judge of Family Court at a belated stage. It is also alleged by the counsel for Mst. Shaheen Akhtar, appellant, that he in fact supplied the necessary stamps along with the application for issuance of the copies on 27-12-1997 but the same were misplaced by the Clerk concerned and were lost. There is no counter-affidavit to rebut the said contentions of the learned counsel for Mst. Shaheen Akhtar.
Therefore, we are of the considered opinion that in view of the application supported by an affidavit sworn in by the learned counsel for Mst. Shaheen Akhtar, it was desirable to condone the delay in case of .Appeal filed by Mst. Shaheen Akhtar before the Shariat Court. A reference may also be made to the following authorities in support of the view that where the date for delivery of the copy of a judgment has not been fixed or the concerned applicant has not been informed about the necessity of the supply of the stamps, or making up the deficiency in the same, the period which is to be excluded for the purpose of limitation for filing an appeal would be reckoned from the date of the application and not from the date of supplying the stamps:-- ' In case reported as Gajpatilal v. Mauliprasad (AIR 1933 Nagpur 218), it has been held that an applicant was not bound to deposit whole of the advance fee required for obtaining copy; he may deposit such fee according to his own estimate. In case of deficiency in deposit, he must be intimated to do the needful and the period between the notice of deficiency and delivery of the copy should also be regarded as requisite time and be deducted for the purpose of limitation.
' In case reported as Mani Singh v. Anand Parkash (AIR 1936 Lahore 693), it has been held that if an application for supplying a copy is accepted without any objection or demand for deposit with the application, it must be regarded as a proper application.
' In case reported as Piare Lal v. Karta Ram (AIR 1936 Lahore 550), it has been held that a litigant cannot be made to suffer for the laches and of a department connected with the administration of justice.
' In case reported as Ghulam Nabi v. Johan Muhammad (PLD 1960 BJ 90), the facts were that the concerned applicant applied for the supply of the copies but no date was fixed by the copying department for the delivery of the same. It was observed by the Court that in absence of the direction of the copyist to take delivery of the copies on a particular date, it cannot be said that the petitioner was negligent in getting the copies; it was observed that the petitioner was entitled to exclusion of the period from the date of making of the application up to the date of the delivery of the copy.
7. Arguing the appeal filed by Muhammad Alam, appellant. ' it has been contended by Mr. Riaz Tabassum; Advocate, the learned counsel for the appellant, that the application for supply of the copy by Muhammad Alam was submitted on 16-1-1998 and he deposited the requisite stamps on 27-1-1998. He was delivered copies on 3-2-1998. According to the learned counsel, the period of 30 days of limitation for filing appeal to the Shariat Court will start from 3-2-1998 when the copy of the judgment was delivered to the appellant.
8. It may be observed that the contention of the learned counsel for the appellant that starting point of limitation would be the date on which the copy was supplied to him is preposterous and not envisaged by law of limitation. It is well-settled principle of law that time requisite for obtaining a copy is to be deducted from the C period of limitation prescribed by law. The difficulty for the learned counsel for Muhammad Alam, appellant, is that he did not submit any application for condonation of delay in filing the appeal to the Shariat Court. Even if it is assumed that he supplied the necessary stamps on 16-1-1998 when he first made the application for supplying the copies, his appeal would be still time-barred. Therefore, irrespective of the fact when he supplied the necessary stamps, his appeal is time-barred. Even otherwise, in absence of any application for condonation of delay the same cannot be condoned. Thus, the appeal filed by Muhammad Alam was rightly dismissed by the Shariat Court.
' In the light of what has been stated above, the appeal filed by Mst. Shaheen Akhtar is accepted and the case is remanded to the Shariat Court to decide the same on merits. So far as the appeal filed by Muhammad Alam is concerned, the order of dismissal passed by the Shariat Court is maintained and his appeal is hereby dismissed. In the circumstances of the case, we make no order regarding the costs.