' Through this revision the petitioners have assailed the order, dated 25-4-2000 passed by learned District Judge, Larkana dismissing the civil appeal filed under section 96, C.P.C. By the petitioners against the judgment and decree dated 30-6-1998 passed by learned 2nd Senior Civil Judge, Larkana decreeing the suit for declaration, partition and possession filed by Amanullah, predecessor-in-interest of respondents Nos.1 to 7 (and Mst. Karam Khatoon who expired and was survived by the same aforementioned respondents) against Azizullah the predecessor-in-interest of petitioners Nos.1 to 5 and the remaining respondents.
2. The appeal was dismissed solely on the point of limitation, therefore, it is needless to reproduce unnecessary details of the case of parties, but suffice it to say that question of inheritance was involved in the suit between the parties in respect of agricultural land admeasuring 49-25 acres situated in Taluka Warah. The prayer in the suit was in following terms:--
(a) To declare that the plaintiff is the legitimate son of Sher Khan and as such he is owner of six annas share in property left by his uncle.
(b) To partition the property in suit and award separate possession. Of the share of plaintiff to the next of six annas.
(c) To award costs of the suit.
(d) To award any other relief as this Honourable Court may deem fit.
' The defendants resisted the suit and filed written statement whereupon issues were framed and evidence was recorded. On appraisal of evidence on record, the suit was decreed by judgment dated 30-6-1998 and the decree was drawn on the same day. Copies of judgment and decree were applied for on 1-7-1998 and the costs were also paid on the same day, but the copies of judgment and decree were made ready on 27-8-1998 and delivered on the same day. The petitioners presented their appeal under section 96, C.P.C. Against the said decree in the Court of District Judge, Larkana on 30-9-1998. The learned District Judge, Larkana after hearing learned counsel for the parties held that there was delay of three days in filing the appeal. The explanation offered for this delay was not accepted and the application under section 5 of the Limitation Act for condoning the delay was rejected and the appeal dismissed with costs.
4. Mr. Moohanlal K. Makhijani, learned counsel for the petitioners firstly sought support from the provisions of subsection (3) of section 12 of the Limitation Act, 1908 and submitted that the time requisite for obtaining copy of the judgment be computed in addition to the time requisite for obtaining the copy of decree within the meaning of subsection (2) of the said section. On this hypothesis, he argued that if both these periods are reckoned consecutively the appeal would not be barred by time. In support of his contentions he referred to Latif Ullah Shah v. Qalandar Shah (PLD 1962 Azad J&K 230).
5. Mr. Lachhmandas H. Sachedevani, learned counsel for the respondents 1, 2, 5 and 6 questioned the aforementioned interpretation placed on above two subsections of section 12 by Mr. Moohanlal K. Makhijani and submitted that the time for filing the appeal cannot be computed in this manner.
Mr. Moohanlal Charai, learned counsel for the respondent No,7 adopted the same view.
6. I have gone through the case decided by High Court of Azad Jammu and Kashmir. The relevant facts of the cited case are that the suit was partially decreed and partially dismissed by the Sub- Judge, Muzzafarabad by his judgment dated 3-6-1955. Both parties challenged the judgment and decree before the District Judge, Muzzafarabad where the appeals were dismissed on 13-1-1961 as time-barred. Both parties preferred 2nd appeals before Azad Jammu and Kashmir High Court challenging the view taken on the point of law of limitation. It was noted that the defendants had applied for copy of judgment and decree of trial Court on 3-6-1955 and copying fee was deposited on 8-6-1955. The copy of, judgment was delivered on 9-6-1955 but then recalled and redistributed to them on 20-7-1955; while the copy of decree was delivered to defendants on 15-7-1955. It was contended before Azad Jammu and Kashmir High Court that the defendants/appellants were entitled to exclude the time from 3-6-1955 to 20-7-1955 being the time requisite for obtaining a copy of the judgment. This contention was accepted. It would be beneficial to quote the relevant observations which run as under:-- "The defendants-appellants were entitled to exclude the time from 3-6-1955 to 20-7-1955 as time requisite for obtaining a copy of the judgment. In addition to this they are entitled to exclude the time spent on obtaining a copy of the decree i,e,, from 3-6-1955 to 15-7-1955. They had applied for obtaining a copy of the decree before the expiry of the period of limitation prescribed for appeal before the District Judge. So, time requisite for obtaining a copy of the decree shall be added to the ordinary period of limitation prescribed for an appeal before the District Judge. We accordingly hold that the appeal filed before the District Judge on 26-7-1955 was well within time and not time- barred as held by the learned District Judge."
7. It may be noted from the facts of the cited case that the copies were applied for on the day of judgment i,e, on 3-6-1955 and copy of the decree was supplied on 15-7-1955 and judgment on 20- 7-1955. In this manner the appeal which was filed on 26-7-1955 was not at all barred by time within the meaning of Article 152 read with section 12 (2) and (3) of Limitation Act.
' Mr. Moohanlal K. Makhijani, learned counsel for the petitioners seems to have made an incorrect interpretation of these observations.
8. In order to appreciate implication of the relevant provisions as applicable to the point in question the text of section 12 of the Limitation Act is reproduced below:--
12. Exclusion of time in legal proceedings.--(1) ...............................
(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.
' For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy of is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery.
9. It is significant to note that the main distinction between subsections (2) and (3) of section 12 of the Limitation Act is that subsection (2) provides a relaxation by way of exclusion of time requisite for obtaining copy of decree while subsection (3) relates to copy of judgment.
' There are no two opinions about the legal position that the aforementioned subsections of section 12 confer a substantive statutory right upon the appellant to claim exclusion of time in aforesaid manner and since such entitlement is available as of right the Court cannot put any restrictions while allowing such deduction. Of time. It may be emphasized that much against the discretionary power conferred on the Court under subsection (5) of the Limitation Act to condone the delay, the exclusion of time under section 12 is to be allowed strictly in accordance with these statutory provisions. Ordinarily, until few years back some difficulties were countenanced in computing the time requisite for obtaining the copies but of late, introduction of subsection (5) has to a great extent resolved the confusion. Again, in given circumstances when the factual aspect as regards the time requisite for obtaining copies, is not disputed, the import of subsections (2) and (3) of section 12 of Limitation Act would be that the appellant is entitled to avail exclusion of aggregate period occupied in obtaining copies of both, the judgment and decree as of right. But when applications for copies of decree and judgment are made, of course within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice.
'In other words, the overlapping period is to be computed only once; for, it is a settled concept that the time runs only once and not twice. Barada Prasanna Lod v. Murshed Muhammad Asir and Abdus Sattar (PLD 1962 Dacca 381) and Federation of Pakistan v. Aspi (PLD 1960 (W.P.) Karachi 562) may be referred to in this context.
10. In the instant case the appellant applied for copies of judgment and decree both on 1-7-1998 which were supplied to him on 27-8-1998 as such the entire period overlapped. Consequently, only 58 days from 1-7-1998 to 27-8-1998 are to be excluded within the meaning of subsections (2) and
(3) .Of section 12 of the Limitation Act. In these circumstances, I am not persuaded to agree with Mr. Moohan Lal that this overlapping period be computed twice and 116 days in aggregate be allowed to be excluded, so that if such computation is made the appeal would be well within time as the same was presented on 30-9-1998. It may be recapitulated that the suit was decreed by judgment dated 30-6-1998 and the appeal was presented in the Court of District Judge, Larkana on 30-9- 1998 i,e, to say after 91 days. Indeed, on the basis of view expressed above if the period of 58 days spent in obtaining the copy is excluded only once the appeal will be deemed to have been filed after 33 days and in that manner it is barred by 3 days. View taken by the First Appellate Court was also the same. I am inclined to hold that the appeal filed- before the First Appellate court was barred by 3 days and the appellant was required to explain the same satisfactorily.
11. Coming to the question of condonation of delay, it may be observed that the First Appellate Court has elaborately dealt with this point and taken the view that the lapse of time vested right accrued to the party which cannot be dealt with lightly on surmises and conjectures s the appellant has to explain the same satisfactorily. The same authorities were relied by learned counsel for the respondents who contended that even one day's delay was not condoned in Rukhsana Ahmed v. Tariq Ataullah (1980 SCM R 36). The principle laid down in this authority fully supports the contention of learned counsel for the respondents, who further relied on other authorities in this regard. Mr. Moohan Lal, however, referred to S.M. Sadiq v. Settlement Commissioner (1974 SCM R 149) wherein a frank admission of mistake made by Advocate was entertained by the Honourable Supreme Court and 13 days' delay was condoned. In this context it is essential to point out that instantly it is not pleaded that on account of a mistaken advice of Advocate the appeal ran out of time. In the present case explanation offered by the appellant is that he was busy in his official duties in PTCL, Nawabshah and was under the bona fide impression that the appeal could be filed up to 30-9-1998. This explanation is far from being accepted as satisfactory. If this kind of evasive versions are taken as explanation the Limitation Act would fall at the mercy of the parties to claim condonation of delay on their whimsical impressions. The First Appellate Court has rightly declined to accept it as a satisfactory explanation. Even in Muhammad Hussain v. Settlement and Rehabilitation Commissioner (1975 SCM R 304) the explanation founded on misconception was not accepted. It was observed that valuable rights accrue on account of limitation and each day's delay is to be explained. Similar principle was laid down in Muhammad Saeed v. Shaukat Ali (1982 SCM R 285) calling upon the appellant to explain each day's delay. In Sher Bahadur v. Government of N.-W.F.P. (1990 SCM R 1519) the petition which was barred by one day was dismissed by Honourable Supreme Court. Likewise, it was observed in Market Committee v. Cantonment Board, Shorkot that opposite-party is not to be penalized in the matter of condonation of delay. In Khalid Segol v. N.I.T. (PLD 1985 SC 124) even the mistaken advice of previous counsel was not accepted as a ground for condonation of delay. In view of the principles laid down in all these authorities, I inclined to hold that the vested right accrued to the respondents owing to delay in filing of the appeal shall not be defeated on the basis of plea taken by the appellant that under bona fide impression and being busy in his official duties he could not file the appeal in time. The explanation is wholly ill-founded and is rejected.
' In result of the foregoing discussion it may be concluded that there is no legal infirmity in the impugned order and the First Appellate Court has not exercised its jurisdiction illegally or with material irregularity. The ingredient of section 115, C.P.C. Are not made out, the revision, therefore, fails and is hereby dismissed with no order as to costs.