' This is tenant's second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The first appeal against order of-his eviction was dismissed as time-barred. The learned lower Appellate Court noted in the impugned order that the Rent Controller having passed the order on 17-12-1969 "the time limit of the institution of an appeal against that order expired on 16-1-1970. The appeal was filed by the appellant on 10-2-1970", therefore, it was time-barred. It was also held to be time-barred because the appellant had not filed any application for condonation of delay. In addition to these circumstances, it was further observed that the arguments in the appeal were heard on 13-11-1970 and till then certified copy of the impugned order had not been placed on the file. From this the learned lower Appellate Court concluded that 'in the absence of such a copy it cannot be said as to how much period is to be deducted while computing the period of limitation". The non-production of the copy was also treated as a negligent act on the part of the appellant with a further presumption against him that its production would not have helped him.
An observation was also made that the absence of the certified copy of the Rent Controller's order rendered the first appeal incompetent. Thus, it appears, the appeal was dismissed both as incompetent and time-barred.
2. Some more circumstances need to be noticed. It is apparent from the file of the learned lower Appellate Court that the appellant had, at the time of filing of the appeal, moved an application for dispensing with the certified copy of the impugned order. This application was accompanied by an davit wherein it was asserted that the appellant had applied for certified copy on 24-12-1969 and that despite personal attempts and efforts the same had not been made available. Apprehension was expressed that if the appeal had not been filed without the certified copy, the appellant would have suffered irreparable loss. He also undertook "to supply the certified copy of the impugned order on its issuance to him by the Copying Agency". An uncertified copy was filed with the appeal.
In the affidavit it was deposed by the appellant that the file of the case bad already been received in the Copying Department and that the copy was expected to be available in about a week's time, "but because the time allowed by the learned Rent Controller is to expire by 16-2-1970." therefore, the appeal was filed without the certified copy of the order.
3. A copy was in fact supplied to the appellant on 19-2-1970 but it is-not the copy of the detailed order of the Rent Controller. It is a copy of a short order in vernacular, which it appears was obtained from the order-sheet. This copy has been placed on the record of the High Court.
Endorsement of the Copying Agency made thereon shows that it was applied for on 24-12-1969, was prepared on 11.2-1970 and was delivered on 19-2-1970, The expectancy expressed in the aforementioned affidavit sworn on 10-2.1970 was not beyond the realm of the possibility. If the Copying Agency had not committed a gross mistake of supplying a wrong copy, the entire controversy might have been avoided. Learned counsel for the appellant has made a statement at the bar that on receipt of wrong copy, again efforts were made with the Copying Agency for supply of correct copy. In the meanwhile, it appears, that the file had been summoned in the appellate Court, that Is why there is an endorsement on the file of that Court, showing that the records were returned to the Copying Agency in connection with the supply of copy. This endorsement supports the learned counsel's statement that attempts were made with the Copying Agency for supply of correct copy. Learned counsel has also made a statement that the correct copy not having been supplied till the hearing of the appeal, the incorrect copy was shown to the learned Judge hearing the appeal but the same was returned because it was not thought to be of any help to the appellant or even relevant. There is no reason to disbelieve the statement made at the bar.
Learned counsel states that he himself appeared before the learned lower Appellate Court. The statement of fact appearing in the appellate impugned order to the effect that certified copy of the impugned order had not been placed on the file does not contradict the statement made at the bar because in fact the copy of the "impugned order" had not been produced-the impugned order meant here was the detailed order in English, of the learned Rent Controller.
4. With the above background three questions need to be examined : (1) whether the appeal before the learned Additional District Judge was incompetent without certified copy ; (it) whether the appellant was not entitled when counting the period of limitation, to adjust the time spent subsequent to the making of the application for certified copy ; and (iii) whether it was necessary for the appellant to make an application under section 5 of the Limitation Act.
5. The first question stands resolved in two recent rulings of this Court, namely, Muhammad Daud v.
Abbas All (1) and Messrs YAM Sons Ltd., Multan v. The Water and power Development Authority, West Pakistan, Lahore and 4 others (2). It was held therein that first appeal under section (5(3) of the West Pakistan Urban Rent Restriction Ordinance even if unaccompanied by the certified copy of the Rent Controller's order is not for this reason, incompetent. I am in respectful agreement with the detailed reasoning's in the first cited case and the conclusion reached therein as also in para. 5 (p. 941 of the report) of judgment in the 2nd case.
6. The next question cannot be answered without taking into account the peculiar circumstances of this case. It is an established fact beyond any doubt that the appellant did make an application for copy of the learned Controller's order on 24-12-1969, much before the expiry of the period o limitation. The learned Rent Controller had in his order dated 17-12-196 allowed 60 days' time to the appellant to vacate the premises. If it would not have been a case of appellant's eviction after 60 days, he could have waited for filing of the appeal till the supply of a proper copy and if he had done so, he would have been allowed to deduct the entire period requisite for obtaining the copy.
He, however filed the appeal on 10-2-1970, about a week before the expiry of 60 days presumably to seek interim relief again eviction ; but that would not mean that this earlier filing of the appeal, as compared to the above visualized situation, would go against him. On the other and, the date of application, i,e,, 24-12-1969 having been established, on the filing of the appeal on 10-2-1970 if a question had arisen then the appellant could have pleaded that the days spent after the submission of application for copy and till the filing of the appeal be excluded from counting the period of limitation. It cannot be visualized that when the process for supply of copy had commenced but had not yet concluded, th latter circumstance would disentitle the appellant from counting this period towards the period requisite for obtaining the copy. Thus, considered, the appeal filed on 10-2-1970 was within time.
(1) PLD 1975 Lab. 699
(2) PLD 1977 Lab. 937
7. There is another aspect of the matter. The appellant was not at fault in so far as the supply of wrong copy by the Copying Agency is concerned. As mentioned above he took steps to seek correction. This shows his bona fides. The learned Additional District Judge should not have returned the incorrect copy. The endorsement by the Copying Agency made thereon showing various dates including that of application and preparation of the copy, it would have been duly considered by the learned Additional District Judge, the appeal would not have been held to be time-barred.
8. There is yet another circumstance which goes in favour of the appellant. The Copying Agency in District Courts is a past of the judicial administration. If the learned Additional District Judge wanted to check certain facts from the Copying Agency, he could have done so before dismissing the appeal. The fault of the Copying Agency, which is a part of the Court's machinery, cannot be made the basis of penalizing the appellant. The principle that no one shall suffer on account of act of Court would at least indirectly apply in this case. For what has been stated above it is held that the appellant was entitled to adjust the period from 24-12-1969 up to the filing of the appeal i,e, 10- 2-1970 in counting the period of limitation. That being so, the appeal was not time barred.
9. The foregoing discussion would show that the period between making of the application for copy on 24-12-1969 and filing of the appeal on 10-2-1970 has to be excluded as period requisite for obtaining copy exclusion of this period is, as of right, under section 12 of the Limitation Act. There was no question of condo nation and thus there was no need for moving an application under section 5 of the Limitation Act. The two cases cited by the learned counsel for the appellant in this behalf, namely, Qalandar Shah and others v. Imdad Ali Shah and others (1) and Messrs Aftab Medical Stores v. Commissioner of Income-tax (2) support him in so far as they go, on analogical basis. In view of the clear provisions of section 12 of the Limitation Act, it is not necessary to discuss any further the case-law in this behalf.
10. Learned counsel for the respondent contended that as held in th case of Muhammad Daud it was not necessary for the appellant to file a copy of the Rent Controller's order, therefore, he should not be allowed to deduct the period requisite for obtaining that copy. This question was also discussed in the said case of Muhammad Daud. It is not necessary to make any further comment on the technical question raised by the learned counsel. In this case the argument is not of any help to the respondent. The appellant had, under a bona fide belief that it was necessary to file a certified copy of the order of the Rent Controller, not only made an application for supply thereof, but had also sought exemption through a proper application with D an undertaking to supply the same whenever it was made available. The perusal of the file of the learned lower Appellate Court has revealed that the learned Additional District Judge who dealt with the appeal at limine stage presumably acting on the undertaking of the appellant, noticed the uncertified copy and passed the orders of admission and notice and also sent for the records. At the same time the learned Judge presumably again, acting on the uncertified copy, passed an interim stay order in favour of the appellant. This shows that although the absence of copy would not make the appeal incompetent, it was otherwise necessary for consideration of another matter pending disposal before the learned Judge, namely, a written (1) PLD 1962 Azad J& K 21 (2) PLD 1976 Lah, 133Q application filed separately for obtaining interim relief of maintenance of status quo. This application was disposed of by an order separate from the order of admission, notice and records.
In these circumstances when an uncertified copy was not only actually utilized but was also necessary for disposal of an application for interim relief, it cannot be said that the copy was otherwise not essential.
11. As a result of the above discussion, it is held that the first appeal was not time barred nor incompetent. This appeal is allowed, the Impugned order passed by the learned lower appellate Court is set aside and the case is remanded to the learned District Judge for disposal of the first appeal.
12. This is a very old matter. The learned District Judge shall either dispose of the appeal himself within one month or while entrusting it to another Additional District Judge convey the above- made observation with regard to the period of disposal to the learned Additional District Judge.
13. The parties are directed to appear before the learned District Judge on 19-10-1977.