Mst. JAMILA KHATOON AND ANOTHER vs Mst. TAJUNNISA AND OTHERS

ZAFFAR HUSSAIN MIRZA, J.-The only point to be determined in this case is whether the Second Appeal filed by the present appellant against the judgment of Additional District Judge, Karachi before the High Court of Sind was time-barred and leave was granted by this Court to consider this sole question.

2. Appellant who is the tenant of the respondent, was ordered to be evicted on the ground of default in the payment of rent, by- the learned Rent Controller as per his order dated 29-2,1975. The First Appeal filed by the appellant was dismissed by the learned Additional District Judge by his order dated 16-9-1975 striking off his defence on his failure to deposit the current rent during the pendency of appeal.

3. The appellant then filed a Second Appeal before the Sind High Court under section 15 of the Sind Urban Rent Restriction Ordinance, 1959, which was admitted to regular hearing by a learned Single Judge of the said Court. However, at the hearing of the appeal a preliminary objection was raised on behalf of the respondent on the ground that the appeal was time-barred, which was upheld by the learned Single Judge and the. Second Appeal was dismissed on this ground by the impugned judgment dated 23-12-1982.

3-A. The question of limitation turned on the true interpretation and scope of the relevant rules contained in the Sind Civil Courts Rules applicable in the Province of Sind. For appreciating the 'precise point that requires to be determined it will be useful to mention certain relevant dates. The final judgment in the First Appeal was pronounced by the 1st Additional District Judge on 16-9-1975.

Application for certified copy of the judgment was submitted on 18-9-1975. The 'amount of estimated copying fees was ascertained on 19-9-1975 and the fees were also deposited on the same day. The copy was made ready on 22-9-1975. The stamp for the copy was supplied on 28- 10-1975. The certification of the copy was also made on the same day and finally the copy was delivered on 1-11-1975. The Second Appeal was presented before the High Court on 5-11-1975. The main contention of the respondent was that the period that elapsed between the date on which the copy was made ready and the date on which the stamp was supplied, consisting of 37 days was not liable to be excluded from the computation of the period of limitation under section 12 of the Limitation Act. The learned Single Judge placing reliance on sub-rule (2) of rule 324 of the Sind Civil Court Rules held that the requisite stamp for the certified copy was to be deposited within seven days of the coinmunication of the cost under sub-rule (i) of rule 323, which in the present case was admittedly communicated on 19-9-;975 to the appellant, but "he failed and neglected to furnish the stamp as per sub-rule (2) of rule 324 within seven days and, therefore, he is not entitled to exclude the entire period of 37 days that the appellant had taken to furnish. The stamp."

4. The crucial words used in section 12 (2) of the Limitation Act are "time requisite" and the Court is required by law to exclude the time requisite for obtaining a copy of the order appealed from. This is a statutory provision of exclusion and is to be distinguished from the power conferred on a Court of law under section 5 of the Limitation Act to admit an appeal after the period of limitation prescribed therefor, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. In this sense the operation of section 12 is distinct from that of section 5, which confers a discretionary power on the Court. No such discretion vests under section 12 and the litigant is entitled, as of right, to exclude the period spent in obtaining copies. Thus section 12 confers a substantive right upon the appellant to claim the time as excluded and the Court cannot impose upon the statutory right of any appellant a restriction not warranted by the Act. But on the language of section 12 their Lordships of the Privy Council in J. N. Surty v. T. S. Chettyar made the following observations : "The word `requisite' is stong word ; it may be regarded as meaning something more than the word required. It means `properly required', and it throws upon the pleader or counsel- for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.

' But for that time which is taken up by his opponent in drawing up the decree or by the officials of the Court in preparing and issuing the two documents, he is not responsible." .

This is the second principle to be applied in cases of this nature. The appellant must act with reasonable promptitude and diligence in order to satisfy the Court that the time which he claims to be excluded was properly required in obtaining copies. The third principle to be kept in mind is that the question as to what is the time requisite for obtaining the copy must necessarily depend upon the practice and rules in force, and no general principles on this question can safely be formulated.

The question is One' of fact, to be determined on the circumstances of each in the light of the rules framed on the subject.

5. Rule 323 (1) of Sind Civil Court Rules lays down that after the amount of copying fee has been ascertained the same is to be communicated to the applicant for the copy and rule 324 enjoins upon the Copying Branch not to commence the preparation of the copy until the estimated amount of the copy and comparing fees have been deposited with the record-keeper. Sub-rule (2) of this rule then lays down as under : "If the estimated amount of fees and, in the case of certified copy, also the requisite stamp is not deposited within seven days from the date of the communication under sub-rule (1) of rule 323 to the applicant, the application shall be rejected and note to that effect made in column No, 24 of the Register of Applications for Copies and Translations."

' After the compliance of all the requirements and in case of certified copies, the certification of the copies has taken place, rule 331 requires that a list of copies ready for delivery shall be posted on1 the notice board of. The record-keeper's office.

6. Mr. Fakhruddin G. Ebrahim, learned counsel appearing for the appellant has mainly urged that the delay in supplying the stamp is not attributable to the negligence on the part of the appellant and that in the circumstances of this case the delay clearly took place due to the failure on the part of the office to call upon appellant to furnish the stamp. He pointed out that no notice was issued to the appellant for complying with the requirement to supply the stamp and that the preparation of the copy is immaterial in this case also because the same was not put up on the notice board for the information of the appellant. It may be pointed out that rule 323 (1) does not place any obligation on the office of the Court to communicate to the applicant the requirement to supply the stamp. The only reference to the supplying of stamp in the relevant rules is contained in sub-rule (2) of rule 324. The absence of reference to the requirement for furnishing the requisite stamp, in the case of certified copies. In rule 323 is apparently understandable,. Since corn- muication of the amount of copying fee is necessary because it is a variable factor depending upon the length of the judgment or order in terms of words as required by Chap. VIII, Appendix D, whereas so far as the stamp on certified copies are concerned, it is fixed by law in the Court Fees Act, Schedule I, Item 6. Rule 324 (2), therefore, requires that once the estimated amount of fee is communicated to the applicant under rule 323 (I), he is required to deposit the amount as well as the requisite stamp within seven days from the date of such communication, otherwise his application is liable to be rejected. The communication under rule 323 (1) apparently has nothing to do with the supply of stamp but only fixes the terminus a quo for the commencement of the seven days period for the deposit of the copying fees and the stamp. Mr. Fakhruddin G. Ebrahim strenuously urged that the court-fee stamp is also a fee in the form of stamps and, therefore, must be construed to be included in theterm "copying fees" as it occurs in. Rule 323 (1) and rule 324, so that the office would be under an obligation to communicate the amount of the court-fee stamp also. We are, however, unable to agree with this contention, for, clearly the rules have placed the copying fees and the stamp into two different categories of requirement. The effect of rule 324 (2) is clearly to place the obligation upon the applicant, when he is communicated the amount of copying fees, to deposit the requisite stamp alongwith the fees or otherwise within seven days. This is further clear from the reading of rule 329 which prescribes the various dates to be endorsed on a certified copy. This rule requires that the date of deposit of estimated fees and the date of supply of stamp is to be separately endorsed. Clearly, therefore, the rules enjoined upon the appellant to supply the stamp promptly within seven days of the communication of the estimated costs, without specific demand proceeding' from the copying agency. In failing to deposit the stamps and wasting 37 days, without any sufficient cause the appellant was clearly to blame and the time thus spent cannot be held to be time requisite for obtaining copies.

7. The argument that rule 331 was not complied with inasmuch as the copy prepared by the office was not put on the notice board is untenable and F was rightly rejected by the learned Single Judge. This rule only relates to copies ready for delivery to be included in a list on the notice board and since prim to 28-11-1975 the copy was not ready for delivery for want of stamp, it could riot be included in the list under this rule. Otherwise apparently the appellant seems to have been aware on the aforesaid date when he supplied the stamps to the office, that the copy will be ready for delivery as soon as certification was made thereon, which is clear from the fact that he received the delivery of the copy within three days on 1-11-1975. It has been held by this Court in the case of Fateh Muhammad v. Malik Qadir Jiakhsh that time requisite for obtaining copy means only the interval between the date of application for supply of copy and the date when it is ready for delivery, but even during this interval due diligence on the part H of the litigant is required by law, and no delay unless such as was caused by circumstances over which he has no control and2 which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy.

8. For the foregoing reasons the view taken by the High Court does not call for interference and this appeal is, therefore, dismissed. I L R 6 Rang. 302 1975 SCM R 157