SARWAR JAN Versus MUHAMMAD IBRAHIM

This civil revision petition under section 115 of the Civil Procedure Code calls in question judgment and decree dated 10‑9‑1989 passed by the learned Additional District Judge, Rawalpindi.

2. The facts necessary for the purpose of this petition, briefly stated, are that the petitioner, Mst. Sarwar Jan, instituted a suit against respondent No.1 in the Court of Civil Judge, Rawalpindi for possession of land measuring 15 kanals 17 marlas situated in village Ghella, Tehsil Taxk District Rawalpindi, which was purchased by respondent No.. 1. vide registered sale‑deed dated ? 7‑12‑1983 through pre‑emption of sale thereof. The superior right of pre‑emption was claimed by the petitioner on the basis of her being the sister of the vendor and co‑owner in the khata of the suit land as also being owner in the estate.

3. Respondents Nos. 2 and 3 also filed a suit against respondent No.1 for pre‑empting the said sale practically on the same grounds on which the petitioner had‑filed the suit.

4. Both the suits were contested by respondent No.1, which were consolidated and the proceeding were taken by the learned Civil Judge, Rawalpindi in the suit of the petitioner. After the framing of issues, the vendee ?respondent No.1 moved an application before the learned trial Court that both the suits were liable to be dismissed in view of pronouncement of the Supreme Court of Pakistan reported as "Ghulam Qadir v. Nawab Din" P L D 1988 S C 701. The learned trial Court treating issue No.1 as preliminary held that since no right of pre‑emption could be claimed by the petitioner and respondents Nos. 2 and 3 in the absence of Talabs, which requirement was not fulfilled by them, they do not possess any superior right as against vendee‑respondent No.l. Both the suits were, therefore, dismissed by the learned trial Court by its judgment dated 21‑12.‑1988.

5. The petitioner preferred an appeal on 27‑7‑1989 before the learned Additional District Judge, Rawalpinid against the aforementioned judgment and decree of the learned trial Court. This appeal was dismissed by the learned Additional District Judge, Rawalpinid by his judgment dated 10‑9‑1989. It may be observed here that respondents Nos.2 and 3 also filed an appeal against the aforementioned judgment and decree of the learned trial Court which has since been accepted and the case has been remanded to the learned trial Court in view of the leatest pronouncement of the Supreme Court of Pakistan reported as "Ahmad v. Abdul Aziz" PLD 1989 SC 771.

6. The petitioner feeling aggrieved of the judgment and decree of the lower appellate Court dated 10‑9‑1989 has come up to this Court in the present revision petition.

7. The learned counsel for the petitioner contended:‑‑

First, that the lower appellate Court erroneously held that the appeal was barred by time. He gave the following detail of various happenings from the date of passing of the judgment by the trial Court up to the date of filing of the appeal by the petitioner:

Date of judgment of trial Court ?????????????????????????????????????????????????????????????????????? 21‑12‑1988

Date of filing application under: No. 10919 for obtaining copy of the judgment 8‑1‑1989

Date of return of application with endorsement ??????????????????????????????????????????????????? 13‑4‑1989

Date of resumbission of the application under No. 20295 with remarks ???? 17‑4‑1989

Date of second time return of the application ??????????????????????????????????????????????????????? 17‑5‑1989

D ate of second re‑submission with remarks ???????????????????????????????????????????????????????? 17-5-1989

Date of third time return with endorsement ??????????????????????????????????????????????????????????? 17-71989

Date of third resubmission under No. 1484 with remarks ? ??????????????????????????????????? 17‑7‑1989

Date of preparation of copy ?????????????????????????????????????????????????????????????????????????????????? 25‑7‑1989

Date. of delivery of copy ?????????????????????????????????????????????????????????????????????????????????????????????? 27‑7‑1989

? Date of riling of appeal ???????????????????????????????????????????????????????????????????????????????????????????????? 27‑7‑1989

In the light of the above details, the learned counsel submitted that if number of days consumed by the petitioner in obtaining the copy be counted from the date of filing of application for obtaining copy of the judgment up to the date of filing the appeal, the same would total to 26 days. The period of limitation prescribed being 30 days after excluding the days spent in obtaining the copy, the appeal had been filed within time:

Secondly, that the copying agency continued to return the application of the petitioner without any justification and in fact for covering its own default and thus delay in preparation of copy was not in any manner attributable to the petitioner; and Lastly, that the return of the application for obtaining copy in the attendant circumstances of the case was not justified as is also provided by Note (i) appended to Rule 1.10 of the Copying Agency Rules inasmuch as not only the minimum details but the full particulars of the copy sought for had been given by the petitioner.

8. On the contrary, the learned counsel for respondents Nos.2 and 3 only submitted that the explanation offered. today on behalf of the petitioner was not provided at the time of hearing of the appeal by the lower appellate Court.

9. learned counsel for respondent. No 1 very candidly submitted that he has nothing to urge to support the impugned judgment of the lower appellate Court in the light of explanation given by the learned counsel for the petitioner.

10. Having given consideration to the controversy, I am of the view that the contentions raised on behalf of the petitioner have great force. The dismissal of the appeal as time‑barred in the attendant circumstances narrated above, to say the least, was highly uncalled for.

?

11. The learned lower appellate Court clearly fell into error in holding that an application under section 5 of the Limitation Act was required which was not submitted till the hearing of the appeal. The period consumed in obtaining the copy was clearly liable to be excluded as provided for by section 12 of the Limitation Act, 1908. It being the admitted position per para. 2 of the impugned judgment that another date for presentation of application viz.' 8‑1‑1989 was mentioned on the certified copy of the decree sheet, the learned lower appellate Court was wrong in holding that the said date could not be considered as the date of application for obtaining copy as the delay in delivery of certified copies had not been referred in the memorandum of appeal. Apart altogether from the position that the learned counsel for the petitioner has stated that the delay was explained at the time of hearing of appeal but somehow it did not prevail with the learned lower appellate Court, the Court should have taken the date of application as 8‑1‑1989 especially when this date was not controverted as the one on which application had been made.

12. Be that as it may, the explanation today offered on behalf of the petitioner adequately shows that there was no delay on the part of the petitioner in obtaining the certified copy and that the day‑, spent for the purpose were liable to be excluded from the period of limitation as laid. down by section 12 of the Limitation Act, 1908 except the days between the date of passing of the impugned judgment and decree dated 21‑12‑1988 and date of making of application for the first time viz. 8‑1‑1989, the date of first return on 13‑4‑1989,1 and the date of resubmission on 17‑4‑1989, the date of second return on 14‑5‑1989 and refilling on 17‑5‑1989 and the date of preparation of copy on 25‑7‑1989 and the date of filing of appeal viz. 27‑7‑1989, which brings the total number of such days to 26 only as against the limitation period of 30 days allowed for filing of such appeals. The appeal having been filed within time, the judgment of the lower appellate Court is not sustainable and has of necessity to be set aside.

13. Before parting with the case, I feel compelled to comment upon the casual rather negligent attitude of the copying agency in dealing with the applications filed by litigants for obtaining certified copies. Repeated and unabated instances of such neglect of the aforementioned agency show that it is one of the factors which promotes unnecessary litigation and multiplicity of proceedings. The case in hand is an apt example of such an abuse of process and negligent attitude of the copying agency. In the present case this agency has been returning the application of the petitioner time and again without itself making any effort whatsoever which by law and rules the agency is under an obligation to undertake.

14. Rule 1.10 alongwith note appended thereto of the Copying Agency Rules for the offices of Deputy Commissioners in the Punjab published in April, 1947 which were adopted for copying agencies of the District Judges vide letter ?No. 4941/Genl/XX‑A‑17 dated 13‑8‑1948 reads as under:‑‑

"Every application for a copy of records shall be made in form C.D.I obtainable on payment of six pies per copy from the licensed stamp vendors. The full name, parentage and address of the applicant shall always be given and it shall also be stated if the copy is required for private use". Applications containing all the requisite particulars but not in the printed prescribed forms, shall not be returned.

Note (i): It is to the interest of both the applicant and of the copying department that full particulars be given so that the record may be easily traced. No application shall, however be returned unless it fails to give the minimum information required to trace the record"

The underlined portion in the (which underlining is by me) clearly directs that no application shall, however, be returned unless it fails to give the minimum information required to trace the record. A significant duty is cast upon the personnel of the copying agency not to return the application arbitrarily and to make efforts themselves for locating the record even if there is minimum information given by the applicant.

15. In the present case this rule has been observed more in its breach than compliance. The rule has not only been not observed but contrarily it has been‑! flouted and disregarded to the maximum possible extent. The certified copy o the application form which has been placed on record gives not only the minimum information regarding the copy required but gives the complete and detailed information about the copy applied for. Added to that is the irony that the copies in fact were also supplied (though after much of the unwanted and highly unreasonable delay caused by frivolous objections) on the basis of the very initial particulars given by the applicant. To me it appears that this is one of the worst cases of abuse of process touching the stage of criminal neglect committed by the copying agency.

16. Such a conduct of the copying agency personnel also reflects on the efficiency of the Controlling Officers of the Agencies and shows the laxity which may reasonably be termed as complicity of the officers also. I wonder why the agony of the public is not being remedied in such a simple matter and the copying agency has been given a free hand to cause harassment to the public and burden it with unnecessary and avoidable expense. As already observed above these acts of omission/commission and negligence are also a big source of multiplicity of proceedings resulting in protracted litigation.

17. In the light of my above observation, I have no hesitation in condemning and deprecating in the strongest words at my command the highly negligent attitude of some of the copying agencies' personnel who by their nefarious activities instead of being helpful to the members of the public are a source of annoyance and agony to them.

18. In order to ameliorate the condition of copying agencies I feel it my duty to direct that a copy of this judgment should be circulated to all the Deputy Commissioners and District and Sessions Judges in the Province with a note G! warning that they should ensure that the copying agencies adhere to the rules. governing their working and not to be a source of harassment and unnecessary expense to the litigants and avoid being an instrument in the promotion of litigation and multiplicity of proceedings.

19. At this stage, I inquired from the learned counsel for all the parties as to whether the case should be remanded to the learned lower appellate Court for adjudication of the appeal afresh or the judgments and decrees of the two below be set aside in the present revision and the case be remanded to the trial Court for adjudication afresh in view of the latest decision of the Supreme Court I of Pakistan reported as "Ahmad v. Abdul Aziz" P L D 1989 S C 771 coupled with the position that the case of the rival pre‑emptors already stands remanded to the trial Court.

20. All the counsel present have submitted that remand of the case to the, lower appellate Court for deciding the appeal afresh will only add to the C prolongation of the litigation and, therefore, setting aside the judgments and decrees dated 10‑9‑1989 and 21‑12‑1988 respectively passed by ‑the learned Additional District Judge, Rawalpinid and the learned Civil Judge, Rawalpindi ,the case may be remanded to the trial Court.

21. In view of the foregoing discussion, allowing this revision and set aside the aforementioned judgments and decrees of both the Courts below, I would remand the case to the learned Civil Judge, Rawalpindi for adjudication afresh in accordance with law. There will, however, be no order as to costs.

22. The parties shall appear before the trial Court on 22‑3‑1990, the date already fixed before the said Court in the suit of the rival pre‑emptors.

M.B.A./S‑693/L ????????????????????????????????????????????????????????????????????????????????????????? Case remanded