' JAVED IQBAL, J.---This petition (C.P.L.A. No,523-L of 2000) for leave to appeal is directed against judgment dated 10-2-2000 passed by learned Single Judge of Lahore High Court, Lahore, in the Chambers whereby Regular Second Appeal bearing No,302 of 1984 preferred on behalf of petitioner has been dismissed and judgment dated 8-12-1984 passed by learned Additional District Judge, Gujranwala, has been kept intact.
2. Precisely stated the facts of the case as enumerated in the impugned judgment are to the effect "that the respondent filed a suit for pre-emption challenging the sale made by Nadir Khan. Vendor in favour of the petitioner, vide sale-deed dated 25-11-1972; the plaint was presented before the Reader of the Court on 19-11-1973 as the learned Civil Judge was on tour to Hafizabad and was working at the District Headquarter, Wazirabad. Reader of the Court sent the file to the Tehsildar, who passed .The order that the case be presented before the learned Civil Judge, on his holding the Court at Hafizabad on 26-11-1973. Accordingly, file was presented before the Civil Judge, Hafizabad on 26-11-1973, who issued summons to the appellant. This suit was contested by the appellant and was decreed. Against the above, petitioner preferred an appeal. The case was remanded to the trial Court for framing of certain additional issues and accordingly inter alia Issue No,2-B was framed, which reads as follows:-- "Whether proper court-fee has not been affixed within time and the plaint has not been presented within period of limitation? OPD"
' Learned Civil Judge again allowed the suit of the respondent vide judgment and decree dated 12- 6-1983. On the aforementioned issues, the findings are that the plaint can only be rejected after giving an opportunity to the plaintiff for making up the deficiency in the payment of the court-fee and he fails to do the needful. As in the instant case, the deficiency was accordingly provided by the respondent, therefore, the plaint could not be rejected, on account of deficiency or limitation.
An appeal was filed by respondent, has also been dismissed by the Appellate Court on 8-12-1984, which too was assailed by means of second appeal which has been rejected, hence this petition.
3. It is mainly -contended by Mian Saeed-ur-Rehman Farrukh, learned Advocate Supreme Court on behalf of petitioners that the rigors of limitation could not have been avoided merely on the ground that learned Civil Judge was not temporarily available at the place of posting and the filing of suit could not have been withheld which aspects of the matter have not been dilated upon and decided accurately and in accordance with law which resulted in serious miscarriage of justice. It is urged emphatically that the suit being time-barred ought to have been dismissed as the question of limitation can neither be taken lightly nor decided in an arbitrary manner. It is contended with vehemence that the Tehsildar was not authorized to receive the plaint thus the question of computation of the period of limitation does not arise.
4. Syed Shamim Abbas Bokhari, learned Advocate Supreme Court on behalf of caveator supported the judgment impugned for the reasons enumerated therein. He further argued while controverting the view point as canvassed at the bar by Mian Saeedur Rehman Farrukh, learned Advocate Supreme Court for petitioners that no evidence worth the name could be led showing that Tehsildar was not authorized to entertain the plaint in the absence of learned Civil Judge. It is also contended that the suit was filed within the prescribed period of limitation in the office of learned Civil Judge and respondent is least concerned with the matter as to whether proper authority was conferred upon anybody to entertain such plaints in the absence of learned Civil Judge or otherwise? It is argued that for the sake of arguments if it is admitted that the suit was time-barred even then the Court was competent to condone the same in view of the plausible justification which is apparent on record.
5. We have carefully examined the respective contentions as agitated on behalf of the parties. We have thoroughly perused the judgments of learned Additional District Judge dated 8-12-1984 as well as judgment impugned. We have scanned the entire record with the eminent assistance of learned counsel. A careful scrutiny of the record would reveal that there are certain admitted feature of the case which are as under:--
(a) That the plaint at first instance was presented before Tehsildar at the direction of Reader of learned Civil Judge on 19-11-1973.
(b) That on 19-11-1973 the suit was not barred by time.
(c) The plaint was presented before learned Civil Judge, Hafizabad on 26-11-1973.
(d) The suit was barred by two days on 26-11-1973.
6. The question which needs determination would be as to whether on the basis of erroneous presentation of plaint the plaintiff could have been penalized or knocked out in view of the prevalent circumstances of the case. There is no denying the fact that the respondent had approached the Court of learned Civil Judge for presenting the plaint on 19-11-1973 within the prescribed period who was performing his duties at Hafizabad and therefore, on the same day it was presented to Tehsildar by the Reader of the Court which could not have been done without proper authorization. Nothing has come on record to show that any direction whatsoever was issued by learned Civil Judge to his Reader for presentation of such suits before Tehsildar. If is admitted for the sake of arguments that the Tehsildar was not duly authorized even then the respondent cannot be held responsible because he does not figure in for conferring authority on Tehsildar or making alternate arrangement which is the function of District/Civil Judge and lapse if any cannot be attributed to the respondent. The learned Civil Judge resumed his duties at Hafizabad on 26-11-1973 when the plaint was presented to him which demonstrates vigilance of the respondent. The High Court, however, has erred while holding that the question of erroneous presentation/limitation was never agitated before the First Appellate Court and the memo. Of appeal was also silent in that regard for the reason that the question of condonation of delay being question of law can be raised conveniently in second appeal. In this regard we are fortified by the dictum laid down in National Bank of Pakistan v. Farid Sons Limited 1968 SCMR 212. Be as it may, admittedly the Court of learned Civil Judge was not functioning at Hafizabad w.e.f, 19-11-1973 to 25-11-1973. The plaint was presented to learned Civil Judge on resumption of duty. As observed hereinabove it was for the learned District Judge to authorize any other officer to C entertain such suits in the absence of learned Senior Civil Judge in view of the provisions as contained in Chapter 1-B, para.7, clause (c) of the High Court Rules and Orders, Volume I, which is reproduced hereinbelow for ready reference:-- "(c) The members of the ministerial establishment are strictly forbidden to receive petitions, plaints or other documents direct from lawyers and their clerks or from litigants except when the Judge is on leave and no other judicial officer is incharge of his current duties. District Judges should, however, invariably make arrangements for the reception of plaints and petitions, etc. By another officer of a Court when an officer is temporarily absent on leave, tour or otherwise. When there is a single judicial officer at a station such as a Mofassal or outlying Courts, arrangements should be made for the reception of plaints, petitions, documents, etc., by the Tehsildar or the NaibTehsildar in consultation with the Deputy Commissioner."
(Emphasis provided).
7. The said provision has been couched in a plain and simple language which being free of any ambiguity or confusion hardly calls for any scholarly interpretation. It makes abundant clear that learned District Judge should make necessary arrangement for reception of plaints/petitions by another officer of a Court when Presiding Officer is absent temporarily or on leave or on tour or otherwise. It hardly makes any difference as to whether any order was passed by the learned District Judge or alternate arrangements were made as it hardly affects the merits of the respondent's case by whom the plaint at first instance was presented to Tehsildar at the direction of Reader of the Court on D 19-11-1973 when learned Civil Judge was on tour and subsequently to the learned Civil Judge on 26-11-1973 on resumption of duties at Hafizabad and thus limitation period would reckon from the date of such presentation if it is presumed that Tehsildar was not duly authorized. It may, however, be kept in view that the plaint was presented to Tehsildar at the direction of Reader of the Court and order was also passed by the Tehsildar for presentation of such plaint to the learned Civil Judge which leads to draw the irresistible conclusion that Tehsildar must have been authorized by the learned Civil Judge. In this regard we are fortified by the dictum laid down in the following authorities:-- ' Khuda Bakhsh v. Muhammad Ismail PLD 1978 Lahore 1049; Receiver of Nidadavole and Medur v. K.
Suraparazu and others AIR 1916 Mad. 3; Radhakrishna Aiyar and others v. R. Swaminatha Aiyar AIR 1918 Mad. 1152 (2); Sewa Singh v. Tara Chand and another AIR 1956 Pb. 30; Kalyan Singh v. Baldev Singh and another AIR 1961 Him. Pra. 2; Nazar Muhammad v. Murad Ali and others PLD 1960 Lah. 757; Shamas-uz-Zaman and others v. Abdul Ghafoor PLD 1971 Azad J& K 16 and Farid Sons Limited v. The Federation of Pakistan PLD 1959 Kar.568.
8. It is worth-mentioning here at this juncture that learned Advocate Supreme Court on behalf of petitioners could bring nothing on record showing that the Tehsildar was not duly authorized by the learned District Judge or Civil Judge, but even then if it is admitted the provisions as contained in section 4 of the Limitation Act, 1908 would come to rescue the respondent and the Court could have been treated as closed w.e.f, 19-11-1973 to 25-11-1973 and limitation would reckon from 26-11- 1973 when the suit was presented and the period of delay could have been condoned in view of the fact that Court was not functioning. We have examined the dictum laid down in Receiver of the Nidadavole and Medur Estates v. K. Suraparazu Vol. XXXVII. Madras Series 295, which cannot be made applicable to this case as Chief Ministerial Officer of the Court has refused to entertain the plaint but in the case in hand the plaint was not only received by the Reader of the Court but it was referred to Tehsildar by whom the proper order was passed to the effect that, plaint be presented to learned Civil Judge after resumption of his duties at Hafizabad. In the case of Receiver of the Nidadavole (supra) the office of the Collector was not treated as closed because strictly speaking the provisions of C.P.C. Were not applicable to proceedings before the Revenue Court and accordingly application of section 4 of the Limitation Act, 1908 was declined. In the case in hand the provisions as contained in section 4 of the Limitation Act, 1908 which revolves around two maxims i.e, "Lex non cogit a dispossiblia" (the law does not compel a man to do that which he cannot possible perform) and "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man) can safely be made applicable as no fault could be attributed to the respondent. We are conscious of the fact that provisions as contained in section 4 of the Limitation Act, 1908 has no concern whatsoever with computing the prescribed period but where it expires on a day when the Court was closed the plaints/petitions/applications may lie preferred on the day when the Court re-opens. The period of limitation is not amended/modified/altered or changed by the provisions of section 4 of the Limitation Act, 1908. In this regard we are fortified by the dictum laid down in Ikramullah v. Said Jamal 1980 SCMR 375; Ziaul Haq v. A. Brabant PLD 1962 (W.P.) Pesh. 21; Ram Chand v. Ram Rattan and others AIR 1928 Lah. 655; Guran Bakha v. Bindraban and another AIR 1916 Lah. 407; Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others AIR 1935 PC 85.
9. In the light of foregoing discussion it can be inferred safely that the provisions as contained in section 4 of the Limitation Act, 1908 would be applicable as admittedly the learned Civil Judge was not available and the Court could be treated as closed and thus the question of limitation or computing the prescribed period does not arise. A similar proposition was examined in Nur Muhammad v. Ghulaman and others AIR 1934 Lahore 622 (1), relevant portion whereof is reproduced hereinbelow:-- ' "It appears that, for some time in the year 1929, the Subordinate Judge of Samrala used to sit for a week every month at Ludhiana. During his absence at Ludhiana on 20th November, 1929, the plaintiff presented his plaint at Samrala, which was accepted by the Naib-Sheriff of the Court. It was placed before the Subordinate Judge on 25th November, 1929 on his return. By that time however, the suit had become time-barred and it was accordingly dismissed.
' The case came up before me once on second appeal and was remanded for a finding on the question as to whether the Naib Nazir at Samrala was authorized to receive plaints in the absence of the Subordinate Judge at Ludhiana under Order 4, rule 1, Civil P.C. The Courts below have now found that the Naib-Sheriff was not so authorized, and this being a finding of fact must be accepted as final. It appears however, that no arrangements had been made for the reception of plaints during the absence of the Subordinate Judge from Samrala, and the Subordinate Judge who was called as a witness expressed the opinion that the Court was taken to be closed at Samrala during his absence. This seems to be the only reasonable view to take in the circumstances, as there were no arrangements during the period of the absence for presentation of plaints, etc., to the Samrala Court. Under section 4, Limitation Act, the period during which the Court was closed has to be deducted in computing the period for limitation. Allowing this period the plaint would be within time."
10. The learned Civil Judge was not working at Hafizabad and therefore, the Court would be deemed to be closed and thus the question of authorization would have no significance and hardly needs any elaborate discussion. There is no cavil with the proposition that where the Presiding Officer of the Court is working to some other place and there is no one authorized to receive plaints/petitions/applications at the headquarter the Court would be deemed to be closed for the period of his absence.
11. In view of what has been stated above the petition being devoid of merit is dismissed and for the foregoing reasons Civil Petition bearing No,2827-L of 2002 and Criminal Original Petition No,18-L of 2000 are also dismissed being not pressed.