1. WAJIHUDDIN AHMED, The facts in this leave petition, 'by and large , are not in dispute. Final arguments in Suit No. 356 of 1978 (Nooruddin and others v. Pakistan and others) were heard by a Single Judge, sitting on the Original Side of the High Court of Sindh at Karachi, on Judge, whereupon judgment was reserved. Such judgment was announced during the summer vacation of the Court on 20-6-1997, whereby the suit was decreed. But with certain reservations.
2. The formal decree was drawn on 27-6-1997, also during the vacations, which had commenced 'on 2-6-1997 and.. Continued till 3-8-1997 (inclusive). The defendants Nos. 1 and 4 '(Pakistan" and the Pakistan Telecommunication Corporation etc.), upon allegations that they never came to know of the judgment being pronounced, applied for the necessary certified copies on 4-8-1997, obtaining the same on 7-8-1997 and preferring their appeal on the same date. Such appeal was admitted to regular hearing without any objection as to limitation but because the appellants-defendants had, as a measure of precaution, also tiled an application for condonation of delay, if any, that application (C.M.A. No. 838 of 1997) was taken-up by a Division Bench of the same Court on 18-5- 1999 and disposed of on date with the observation that since of appeal filed was well within time no occasion arose for condonation of delay. of an appeal upon the reopening day of the Court if, and when, limitation therefore, expires at a time the Court is closed and the second, amongst other things, providing for exclusion of the time consumed in obtaining certified copies of the impugned judgment and decree, inclusive of the dates on which such copies are applied for and delivered in the ordinary course. These sections in the Limitation Act run as under:- Limitation Act, 1908 Where Court is closed when period expires.-- Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the date that the Court reopens.
12. Exclusion of time in legal proceedings.-- (1) In computing the' period of limitation prescribed for any suit, appeal or application, the day from which such period is to he reckoned shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded: Where a decree is appealed from or sought to be reviewed the time-requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. #TBS (5) #TBE
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
3. For the purposes of sub-sections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or awarded shall he deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimate to the applicant to be the day on which the copy will be ready for delivery."
4. (1. Added w.e.f. 6-7-1991 per Act XIII of 1991).
5. The learned Judges of the Division Bench in reaching the conclusion that they did found that no party was under obligation to apply for a copy of the judgment during the period when the Court is officially closed even though the office of the Court is functioning. On such premises it was concluded that because the required copies were applied for on the reopening day of the Court and because the appeal was filed on the same date on which the copies were prepared and delivered no question of bar of limitation arose. As against this conclusion before the High Court as also here reliance is placed on Fay Ahmad v. Hidayat Begum (1997 SCMR 1393), and Chief Personnel officer, Pakistan Railways v. Anjum Farooq (PSC 1997 674). The first of these cases is distinguishable on facts. There. The impugned order of the High Court was passed on 14-6-1993, copy whereof was applied for on 16-6-1993 which, having been prepared on 11-7-1993, was delivered on 13-7-1993. The Intra-Court Appeal against the Single Bench order was preferred on 25-8-1993 but having occasioned objections was taken back and re-filed on 16-9-1993. Thus, the High Court having reopened on 9-9-1993 the re-filing of the appeal on 16- 9-1993 was correctly found to have been beyond time, the rule, enacted in Section 4 of the Limitation Act, not being attracted. The appellate order of dismissal was upheld in this Court, per the above report and, inter alia, condonation, being discretionary with the learned Judges of the Division Bench, was not interfered with. Some observations, however, have occurred in the report, which appear to be biter. Insofar as Re: Chief Personnel. Officer is concerned, limitation for tiling the leave petition before this Court was to expire on 11-5-1995. The Court, however, on account of Eidul Azha, was closed from May 11 to May 13, 1995 but till then the petitioner had not applied for a certified copy of the impugned judgment, which they did on 14-5-1995 itself and the copy of having been made ready on 13-7-1995 was delivered to the petitioners on the same date. That very day the leave petition was tiled in this Court. Leave was granted, apparat from merit, to consider whether the petitioners were entitled to deduct the period between , 14-5-1995 till 13-7-1995. Such appeal, ultimately, corning-up on 4-2-1997, was dismissed. It was found that Section 4 of the Limitation Act did not have the effect of extending the period of limitation but was designed only to enact an enabling provision in the situation envisaged therein. Mr. Usman Ghani Rashid, Advocate Supreme Court, however, specific to his contention, referred to the following passage, in the way of comment of this Court on the Privy Council case of Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others (AIR 1935 Privy Council 85):-- "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).
6. We are, however, unimpressed by the reference because the observations of this Court, as underlined in the report, pertaining to the non-exclusion of the period of vacation by the Privy Council, contextually, referred only to the tact that the Court approached during vacation was a wrong. Court and when the application for the final decree was made in the proper Court the vacations had long since elapsed. The facts in Maqbul Ahmad's case, insofar as relevant are these.
7. A preliminary mortgage decree was obtained on 7-5-1917. The material appeals before the High Court of judicature at Allahabad were dismissed on 7-6-1920. The decree-holder, thereupon, proceeded to seek execution under the preliminary decree. Between 23-12- 1920 and 8-11-1921 he was occupied in those proceedings. On the date last mentioned it was held that the execution proceedings, without the final decree, were not competent. Meanwhile, the Court of the Additional Subordinate Judge by which the preliminary decree had been made stood abolished and its jurisdiction was transferred to the Subordinate Judge at Basti. However, at a later stage, another Additional Judge was appointed with specified jurisdiction in place of the abolished Court. On 20- 6-1923, being. The day after the end -of the long vacation (limitation apparently expiring on 6-6- 1923) the decree-holder made the application for a final decree in the Court of the new Additional Subordinate Judge. This petition was returned on 6-8-1923 with an intimation that he had presented it in a wrong Court and that the Court of the Subordinate Judge at Basti was the proper one. Accordingly, on the day on which the decree-holder got back his petition he presented the same to the Subordinate Judg at Basti. There, an objection was taken as to the bar of limitation since the period of three years under Article 181 of the Limitation Act from 7-6-1920 already stood expired. The Judicial Committee declined to condone the period during which execution of the preliminary .Decree was sought on the ground that the execution proceedings was not in the nature of seeking a final decree and the benefit of Section 14 of the Limitation Act could not be extended to the time so consumed. As regards the second period namely, that covered by the long vacation it was found that the decree-holder had instituted the petition for final decree in a wrong Court and, therefore, could not claim the benefit of such Court having been closed for vacation, the petition having been presented on the opening day. The relevant discussion of the Board occurred in these words:- "The second period is the period of the long vacation. In regard to that matter, the appellants seem to their Lordships to be in a position which is in the nature of a dilemma.It is to be noted that there is a marked distinction in form between Section 4 and Section 14. The language employed in Section 4 indicates that it has nothing to do with computing the prescribed period. What the section provides is that, where the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens, so that there is nothing in the section which alters the length of the prescribed period; whereas in Section 14, and other sections of a similar nature in the Act, the direction begins with the words: 'In computing the period of limitation prescribed for any application ' certain periods shall be excluded............... That being so, that appellants appear to be in this difficulty. They have been allowed, and (as their Lordships think), properly allowed, the period from 20th June, 1923 to 6th August, 1923. At page 33 of the record, this passage in the judgment of the High Court appears:-- 'Even therefore if the three years and forty-eight days are counted from that date, the time expired some time a ,bout 25th July, 1923. That did not fall within the long vacation. It, therefore, follows that the plaintiffs are not entitled to the benefit of Section 4.'
8. That view of the way to calculate the prescribed period seems to their Lordships to be correct; but even if it were not correct and it were necessary to turn to Section 4, the language of Section 4 is such that it seems to their Lordships to be impossible to apply it to a case like the present. What it provides is that, where the period of limitation prescribed expires on a day when the Court is closed, the application may be made on the day when the Court reopens. In their Lordships' view that means the proper Court in which the application ought to have been made and, on the view of it, it is impossible to say that this application was made to the proper Court on the day on which that Court reopened."
9. Neither, therefore, the case of Fayyaz Ahmad nor that of the Chief Personnel Officer, Pakistan Railways, both from this jurisdiction, can be construed to imply any deviation on the part of this Court from the established dicta in the sub-continent concerning the grace incorporated in Section 4 of the Limitation Act. That section enables a suitor, appellant or applicant in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute, prefer or make such suit, appeal or application, as the case may be, on the day the Court re-opens. Consistent authority. On the point is that where the Limitation Act provides an extension in the period of limitation, such as under the bulk of Sections 6 to 24, the person concerned may add such period to that in contemplation of the First Schedule to the Limitation Act, and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application, taking benefit from Section 4 of the Limitation Act, may be instituted, preferred or made on the date the relevant Court reopens. Inter alia the rule has been recognised in Naganna v. Krishnamurthi (AIR 1932 Madras 139), Nur Muhammad v. Sachul (PLD 1957 Karachi 843), Rasul Bakhsh v. Ghulam Qadir (PLD 1960 Karachi 741), Fazal Karim v. Ghulam Jillani (1975 SCMR 452), Inshallah- Begum v. Shamim Akhtar (1983 CLC 2583), Ikramullah v. Said Jamal (1980 SCMR 375), Port Muhammad Bin Qasim v. NIC, Karachi, (1983 CLC 3126). Even so, the judgment in the case of the Chief Personnel Officer,, Pakistan Railways, carries sufficient warrant to conclude that the seeking of the certified copy of the assailed judgment, decree or order on the date the Court reopens, and filing of the relevant appeal/application 'on the very date on which such certified copy is prepared and obtained are factors which, in terms of Section 4 of the Limitation Act,, do not come in the reckoning.. We are hound by this view even though some consideration may arise, to line with High Court opinion, when it is recognised that the days on which limitation springs up and expires"
10. (Section 9 of .The General Clauses Act, 1897) read with the commencing and concluding days in the. Title to the First Schedule in the Limitation Act, as augmented by sub-section (1) and the newly-added sub-section (5) of Section 12 of the same Act, are not to he counted nor the day on which (while the right subsists) the certified copy of the impugned judgment or decree is applied for, nor the day on which is notified to be ready and made ready, as.The day on which the appeal or application is preferred, even it preferred on the last such reckoned) day of limitation.
11. Their Lordships in the case of Chief Personnel . Officer, Pakistan Railways v. Anjum'Farooq (supra), in reaching the conclusion that they did, largely drew on Muqbul Ahmad v. Onkar Pratap, AIR 1935 Privy Council 85, Umedsingh v. Shankerlal, AIR 1948 Nag.Pur 63, Ziaul Haq v. A. Brabant, PLD 1962 Pesh. 21 and Kanhaiyakil v. Ramkishan (AIR 1966 Madhya Pradesh 340). The last three precedents proceed on the Privy Council observations in A/M(0u Ahniad's case where, as seen, a distinction was drawn in the effect of Section 4 of the Limitation Act and other provisions in the same statute, such as Section 14, pursuant to the latter of which the period spent was to be added in the one prescribed, Section 4 having been found merely to he enabling allowing the relevant proceeding to he tiled upon reopening of the. Court. This transpired in circumstances, already quoted. There were as many as almost half a dozen contentions .
12. Advanced before the Judicial Committee but none included the question of adding up the "the time requisite" for obtaining certified copies envisaged in Section 12 of th..!. Limitation Act. At the same time, on that question there were umpteenious precedents, squarely involving anticipated expiry of limitation , while the Court was closed and the- affectee's makinu the application for copies, whilst his right survived, on the re-opening clay of the Court. None of these decisions was noticed let alone retracted. Some such cases are reported as Siyadat-un-Nissa v. Muhammad Mahmud (TLR 19 All. 342), Tukaram Gopal v. Pandurang Sadaram (ILR 25 Born. 584), Pandharinath Sakharam v. Shankar Narayan Joshi (ILR 25 Born. 586), Ruldu Ram v. Surain Singh (AIR 1926 Lahore 120), Ram Chand v. Ram Rattan (AIR 1928 Lahore 655), Mt Attri v. Ramkishan (AIR 1930 Lahore 216), Asa Singh v. Hira Singh (AIR 1938 Lahore 317), Md. Zaman v. Hans Raj (1938 Lahore 707).
13. Following upon the generalised observations of the Board, however, the cases just cited started either being ignored or side-tracked. Such was a serious development, without there being an apparent realisation that if the /is could be instituted, upon re-opening of the Court, surely, there had to be an entitlement to so do and some logic had to he found to deny obtaini certified copies sanctioned by Section 12 ibid. This was answered seemingly for the first time, by Abdur Rehman, J.
14. In Bhiwani Cloth Mills v. Parmeshari Doss (AIR 1947 Lahore 168), when, by way of the distinction, it was stated that the situation presented a circumstance where limitation expired during the time the Court was closed but the right to lodge the proceedings subsisted. Here, too, -may he. Noted the phraseology used in Section 4 (supra), viz. "where the period- of limitation prescribed--- -- expires" as distinguished from "where the period of limitation prescribed- ------------------ has expired", possibly involving a prospect of expiry and not an actual expiry.
15. The crucial question in such matters is premised on the rule that in computing the period prescribed for any suit, appeal or application the day from which such period is to he reckoned is excluded whereas under other enabling provisions the various extensions therein are required to he added. However, once limitation begins to run no subsequent benefit of such periods is allowable. But that is only, as in Maqbul Ahmad's case, when the period has actually begun to run, something different than the mere expiry date of limitation. In cases where limitation is projected to expire, while the Court is closed, it may he possible to say that such period has actually expired during vacations but, perhaps, not easy to say that upon such expiry limitation has begun. It may, arguably being only when the reopening day has come and gone and the affectee has neither submitted his proceedings nor done anything to save his right in that behalf. An illustration or two may bring home the point. Assume, now, a situation where for filing an application (say that for review) in Court, only a period of one day is allowed lout other benefits under the several provisions of the Limitation Act are left. Unaffected. The person who is to file the application on the day next to the day of accrual of the cause, tiled on such next day an application for the certified copy. Of the order which he intends to question. Under Section 12, sub-sections (2) and (5) etc., the moment that application is made, such should preclude limitation to run against him and the p reclusion may continue till the date the requisite copy is postulated ready or delivery and delivered duly. In other words, such an applicant. If he prefers the required application (say for review) on the day the certified copy is thus prepared and delivered, could be within time. This is because time maiy not have run against him from the day he filed his application for due copy and obtained its delivery immediately upon preparation, tiling the (review) application on the same day. In this scenario and in a parallel case, when the affectee is entitled to file his appeal or application on the day the Court reopens, if on such day he applied for the certified copy and duly obtained it immediately on the date it is ready, promptly filing this appeal or application, upon receipt of the copy, it can, perhaps, be argued that time has not run against him. However, in the case of Kanhaiyalal v. Ramkishan, which seems to have been approved by their Lordships in Chief Personnel Officer, Pakistan Railways v. Anjum Farooq, this kind of grace is not found available. Even though, as respectfully stated, a different angle of the matter can present itself that aspect may, if needed, be considered In some other case. This is so, because we can decide the present controversy on a different plane, as would appear below.
16. As already seen, the judgment in the suit on the original side of the High Court of Sindh was reserved at a time the Court was functioning in routine-but the order was announced when the Court had gone into summer vacation. No notice of such announcement except, apparently, in the cause list occurred and there is nothing on the record to show that either any notice was addressed to the parties for such announcement or a copy of the cause list was delivered to the concerned advocates. It is a known fact that when a case is taken-up in the High Court of Sindh during vacation, copies of cause list are supplied only to such advocates whose names appear in such list and even that, at times is neglected to be done. In the instant case, the learned counsel for affected party maintained that he never came to know of announcement of the judgment during vacation and nothing to the contrary was urged or shown. This implied that the necessary steps taken to prefer an appeal from the date of knowledge could he considered for computing the time within which the appeal could he taken. As seen, certified copy of the judgment and decree was applied for on the very day on which counsel came to know of the announcement viz., the day when the Court re-opened after the summer vacation and appeal was preferred on the very day the certified copy became ready and was delivered. The opinion of Abdul Rashid, J., as he then was, in WM. Zunian v. Hans Raj (ibid) coincides with this view. In these circumstances when the pronouncement of the judgment could not be counted against the appellant, because of want of notice, the appeal would obviously be in time and the High Court rightly opined it to he so.
17. We have, therefore, found no merit in this petition and dismissed it..