MUHAMMAD IBRAHIM Versus MUHAMMAD IDREES

Instant revision petition is directed against the judgment and decree, dated 9‑6‑1997 whereby Mr. Nasir Ali Shah, Additional District Judge, Gujranwala, while dismissing the appeal confirmed the judgment and decree of the lower Court, dated 20‑3‑1996, dismissing the suit of the plaintiff/ petitioner.

2. Briefly stated the facts are that plaintiff/petitioner filed suit for possession against the defendants/respondents which was decreed on 26‑3‑1994. The said judgment and decree on appeal was reversed and suit was remanded vide order, dated 20‑4‑1995. After remand, the suit was dismissed on 20‑3‑1996. An appeal preferred against the said judgment and decree, dated 20‑3‑1996 met the same fate vide order, dated 9‑6‑1997. Hence this revision petition.

3. Since the Appellate Court has decided the appeal on law point relating to Limitation Act, so there is no need to dilate upon facts of the lis.

4. Briefly stated the facts forming the background are that plaintiff/petitioner moved application for obtaining copies of judgment and decree, dated 20‑3‑1996 on 2‑4‑1996. He was given the date of collection of said copies as 8‑5‑1996. He collected the copies on said date and filed appeal on 23‑5‑1996. His contention is that since the time requisite for obtaining copies was to be excluded under subsection (5) of section 12, Limitation (Amendment) Act XIII 1991, so the appeal was within time and the stand of Appellate Court that as the copies were ready on 8‑4‑1996, so period of limitation shall start from 8‑4‑1996 and not from date of delivery i.e., 8‑5‑1996 is not legally correct; that the Appellate Court has relied upon 1973 SCMR 555 which relates to the period prior to enactment of Limitation (Amendment) Act XIII of 1991, in which subsection (5) has been added to section 12 in the Limitation Act, 1908, which came into force on 6‑7‑1991; that appeal was not barred by time within the meaning of subsection (5) of section 12 of the Limitation Act; that question of limitation is mixed question of law and fact which required inquiry into the matter; that the Appellate Court has dismissed the appeal without holding any inquiry as envisaged by subsection (5) of section 12 (ibid); that Court has wrongly exercised the jurisdiction vested in it by law by dismissing appeal in an arbitrary and capricious manner. He has submitted that appeal may be accepted and matter be remanded to the Appellate Court to decide in accordance with law.

4. Conversely, the learned counsel for defendants/respondents has supported the impugned order. That admittedly copies were applied on 2‑4‑1996 and were ready on 8‑4‑1996 and were collected on 8‑5‑1996 and appeal was preferred on 23‑5‑1996. If the intervening period requisite for obtaining copies is calculated, it comes to 57 days, that time requisite for obtaining copies of order within meaning of section 12 Limitation Act, 1908 would mean only the interval between date of application for supply of copy and date when same was ready for delivery as held in Qasim v. Province of Punjab (1990 CLC 1495 (Lahore), Cantonment Board Kharian Cantt. v. Muhammad Shafi (PLD 1991 SC 400), Fateh Muhammad and others v. Malik Qadir Bakhsh (1975 SCMR 157), West Pakistan Industrial Development Corporation Karachi v. Aziz Qureshi (1973 SCMR 555) and Muhammad Nawaz v. Muhammad Ibrahim and 9 others (1995 CLC 773 (Lahore).

5. He next contended that instant revision petition is liable to be dismissed as it is not properly documented and relied on Bashir Ahmed v. Abdul Wahid (PLD 1995 Lahore 98), Muhammad Bashir and others v. Muhammad Hussain (1994 CLC 1207), Trading Corporation of Pakistan Ltd. v. Luck Fruit Products (PLD 1988 Lahore 329), Sultan Ahmad Awan v. Ghulam Muhammad Awan (PLD 1987 Lahore 663) and Civil Revision No.2341 of 1995, dated 10‑1‑1996.

6. The first point to be adjudicated is, if the appeal filed by the petitioner on 23‑5‑1996 was barred by Limitation Act or not. Admittedly the Trial Court decided the suit on 20‑3‑1996 and application for obtaining copies was moved on 2‑4‑1996. It is also admitted fact that copies were ready on 8‑4‑1996 and were collected on 8‑5‑1996. According to section 12(2) Limitation Act, 1908, time requisite for obtaining copies has been defined to be the time consumed in between date of application for supply of copies and date of delivery as held in 1995 CLC 773, 1990 CLC 1495 (Lahore), PLD 1991 SC 400, 1975 SCMR 157 and 1973 SCMR 555.

7. There is no cavil to the proposition held in the authorities referred above. However, one thing is to be noted that all these authorities except 1995 CLC 773 (Lahore) relate to period prior to the decision of the lower Court, dated 20‑3‑1996. The date of decision is material, as law of limitation has been amended vide Limitation (Amendment) Act XIII of 1991 which came into force on 6‑7‑1991. All the authorities referred above, except 1995 CLC 773 (Lahore, relate to Limitation Act, 1908 and have been enunciated prior to the amendment introduced vide Act XIII of 1991, as such said authorities are not applicable to the facts in hand.

8. According to subsection (2) of section 12 of Limitation Act, 1908, time requisite for obtaining copy of judgment, decree etc. would only mean the interval between the date of application for supply of copy and date when same was ready for delivery. This means that as soon as the copy was ready, period of limitation shall start running. However, the position has changed with the addition of subsection (5) of section 12 of Limitation Act introduced vide Limitation (Amendment) Act XIII of 1991, which reads as follows:

"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 is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."

A perusal of the added subsection (5) to section 12 Limitation Act, 1908 introduced vide Limitation (Amendment) Act XIII of 1991 reveals that it has changed the complexion of subsection (2) of section 12 Limitation Act, 1908. According to old Act of 1908 "Time requisite" meant the interval between date of application and date when same was ready for supply. However, according to amendment introduced in the form of addition of subsection (5) to section 12 vide Limitation (Amendment) Act XIII of 1991 "Time requisite" would be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery. Thus, according to section 12(5) Limitation Act, as it now stands and holds the field, the "Time requisite" would not come to an end, as soon as copy is ready for delivery, but it will start running as soon as the applicant is actually intimated about the day on which copy would be ready for delivery. In the instant case, copy was ready for delivery on 8‑4‑1996 but there is nothing on the record to suggest if the applicant (plaintiff/petitioner) was ever intimated about the day on which the copy would be ready for delivery. As per petitioner, he was given 8‑5‑1996 as date for collecting copy, so he went there and collected the same on 8‑5‑1996. Thus, in the absence of any intimation as stipulated by subsection (5) to section 12 Limitation Act it appears that appeal was not time‑barred.

9. The next point urged relates to dismissal of revision petition for want of proper documentation. There is no doubt that according to section. 115(1), C.P.C. petitioner is under a legal obligation to support his petition with pleadings, documents and orders of subordinate Court failing which petition is liable to be dismissed. Learned counsel for the respondents has referred to PLD 1995 Lahore 98, 1994 CLC 1207, PLD 1988 Lahore 329 and PLD 1987 Lahore 663. However, the matter has been settled by the Apex Court of the country in Riasat Ali v. Muhammad Jaffar Khan and 2 others (1991 SCMR 496) where it has been held as follows:‑‑‑

" S.115(1), proviso (proviso added by Code of Civil Procedure (Amendment) Ordinance (X of 1980).

The main question that arises is whether the rule contained in the proviso is mandatory and its initial violation is fatal to the petitioner's case. No such intention can be gathered from the proviso. The proviso is a mix between a strict rule of discipline, which compels the Court to dispose of the revision petition without calling for the record of the lower Courts and a discretion which may, in a genuine case, influence it not to so dispose of the petition, but to call for the record itself before doing so. If the Court can call for the record itself, there is no bar to the Court adopting the more easier and speedy option of directing the party to make good certain copies of the pleadings, documents or orders which are relevant and have not been so filed. The rule in any case is not founded in terrorem, to be visited invariably with the dismissal of the revision petition at the very first hearing on the slightest violation of the rule by the party filing the petition."

10. As the instant revision petition can be disposed of on the basis of order, dated 9‑6‑1997 annexed with the petition, so petition cannot be dismissed fore want of copies of other documents.

11. The upshot of the above discussion is that Appellate Court has acted in the exercise of its jurisdiction illegally and with material irregularity and has failed to exercise a jurisdiction so vested in it in accordance with law. Resultantly, revision petition is accepted and impugned order, dated 9‑6‑1997 is set aside. The matter is remanded to the Appellate Court to decide the same in accordance with law. No order as to costs.

Parties are directed to appear before the Appellate Court on 30‑3‑1998.

A.A./M‑637/L Order set aside