2016 C L C 1600

2016 C L C 1600

[Peshawar]

Before M. Daud Khan, J

MULTAN KHAN----Appellant

Versus

GHAZNI KHAN and 13 others----Respondents

F.A.O. No.3 of 2012, decided on 30th March, 2015.

(a) Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R. 4(2)---Appeal dismissed in limine---Review---Notice, requirement of---Trial court dismissed application filed under S.12(2), C.P.C., by respondents against ex parte decree---Appellate court dismissed appeal in limine for being time barred; against which respondents filed review petition on the ground that they had no knowledge regarding preparation of copy, as copy agency had not notified the date of preparation---Court accepting review application recalled its order and admitted the appeal for regular hearing---Contention raised by appellant was that appellate court had committed material irregularity by accepting review application as no notice had been issued to him---Validity---No notice to appellant was required under O.XLVII, R.4(2), C.P.C. as order which was sought to be reviewed had been passed in limine---High Court dismissed appeal for being without any substance.

            Saleem Dil Khan v. Mirza Khan 1991 MLD 1006; Official Trustee of Bengal v. Benods Behari Ghose Mal AIR 1925 Cal. 114; Dr. M. Fazil Zahir and others v. Mst. Begum and others PLD 1966 (W.P.) Lah. 53 and Waheed Ahmad and others v. Additional Commissioner (Revenue)/Settlement Commissioner, Rawalpindi Division, Rawalpindi and others 1990 CLC 220 rel.

(b) Limitation Act (IX of 1908)---

----S. 12(2)----Exclusion of time in legal proceedings---Preparation of copy, notice as to---Limitation, determination of---Copy agency has to notify to the party about date when copy is ready, and if such notice is not given then time requisite for obtaining copy would start when application for the same is made and ends when copy is delivered.

            Shujahat Hussain v. Muhammad Habib and another 2003 SCMR 176 rel.

            Ghafoor Ahmad Qureshi for Appellant.

            Asad Jan and Naveed Ahmed for Respondents.

            Date of hearing: 30th March, 2015.

JUDGMENT

            MUHAMMAD DAUD KHAN, J.--- Impugned herein is the order dated 16.11.2001 of learned Additional District Judge-V, Nowshera, whereby review petition of the respondents was accepted and their appeal was admitted to regular hearing.

2.         Brief facts of the case are that respondents Nos.1 to 8 challenged the validity of ex parte decree dated 30.1.2004 on the basis of fraud, misrepresentation and concealment of facts, which was contested by the appellant and other respondents by filing replications. Issues were framed and evidence of the parties was recorded. The learned trial Court, after hearing the learned counsel for the parties, dismissed the application vide judgment and order dated 31.5.2011, Feeling aggrieved, respondents Nos.1 to 8 filed appeal before the learned District Judge, Nowshera, which was entrusted to learned Additional District Judge-V, Nowshera for adjudication, who vide judgment and order dated 27.9.2011 dismissed the same being barred by time. Thereafter, respondents Nos.1 to 8 filed review petition before the said Court, which was accepted vide order dated 16.11.2011 and the judgment and order dated 27.9.2011 was recalled, hence, the appeal of respondents Nos.1 to 8 was admitted to regular hearing. Hence, the instant Appeal.

3.         Mr. Ghafoor Ahmad Qureshi, Advocate, learned counsel representing the appellant contended that the learned Appellate Court while accepting review petition of respondents Nos.1 to 8 has not issued any notice to the appellant and has committed material irregularity, hence, the impugned order is liable to be set aside.

4.         Mr. Asad Jan, Advocate, learned counsel representing the respondents supported the order of learned Appellate Court.

5.         I have heard the learned counsel for the parties and have gone through the record.

6.         In the instant case, the application under Section 12(2), C.P.C. was dismissed by the learned Civil Judge-IV, Nowshera vide judgment and order dated 31.5.2011 while the respondents applied for its certified copies on 2.6.2011, which were prepared for delivery on 11.6.2011 but the same were obtained on 14.9.2011 and the appeal was preferred before the learned Appellate Court on 20.9.2011, which was dismissed in limine on 27.9.2011. Subsequently, respondents had filed review petition before the said Court, who summoned the copying clerk and recorded his statement wherein he stated that no notice was given to the respondents after preparation of attested copies of impugned order/ judgment, which were though prepared on 11.6.2011, thus, the learned appellate Court accepted the review petition of respondents and recalled the previous order dated 27.9.2011 by admitting their appeal to regular hearing.

7.         It is by now settled law that Copying Agency, who is department of the Court, has to notify the party about the date when copy would ready. If such notice has not given then time requisite for obtaining the copy shall start when the application for copy was made and end when the copy was delivered. For convenience, section 12(2) of the Limitation Act, 1908 is reproduced below:-

"12.     Exclusion of time in legal proceedings: (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.

(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".

A bare reading of the above section would reveal that the time from 2.6.2011 to 14.9.2011 will be excluded from computing the period of thirty days.

8.         The Hon'ble Apex Court in the case of Shujahat Hussain v. Muhammad Habib and another (2003 SCMR 176) has held that:
         
"We have considered the application for condonation of delay and have also gone through the certificate appended by the Copyist Branch of the High Court. A perusal whereof indicates that the application for obtaining certified copy of the judgment dated 19th October, 2001 was submitted on 22nd October, 2001 whereas the same was certified on 11th December, 2001 and supplied to him on 13th December, 2001. According to learned counsel, the office of the Copyist Branch had not issued notice to petitioner for collecting the certified copy of the judgment for a particular date in terms of section 12(5) of the Limitation Act and if the time is calculated from the date of certifying the copy i.e. 11th December, 2001, then the petition is within time which was submitted on 12th January, 2002.
         
In view of above position, we are of the opinion that the petition is within time".

            Similarly principle is also laid down by this Court in the case of Saleem Dil Khan v. Mirza Khan (1991 MLD 1006).

9.         Now coming to the other question raised by the learned counsel for the appellant whether impugned order dated 16.11.2011 by which the previous order dated 14.9.2011 was recalled is unlawful as no notice was given to the appellant. Such question had been the subject-matter of examination in a number of cases. In the case of Official Trustee of Bengal v. Benods Behari Ghose Mal (AIR 1925 Cal. 114), followed the Janaki Nath Hore case, has held that:
         
"where the review sought is in respect of an order dismissing an appeal in a summary manner, no notice is necessary to the respondent in the appeal for the reason that he is at that stage not yet an opposite party within the meaning of the proviso to rule 4(2) of Order XLVII of the C.P.C.".

            The above said dicta was reaffirmed in the case of Dr. M. Fazil Zahir and others v. Mst. Begum and others (PLD 1966 (W.P.) Lahore 53), wherein it was held that:
         
"There was no necessity to give notice to the respondent in the stage of recalling an order passed in limine on the simple ground that the opposite party had a right to support the impugned decision of original cause at the time of final hearing".
         
The above said principle was further followed in the case of Waheed Ahmad and others v. Additional Commissioner (Revenue)/ Settlement Commissioner, Rawalpindi Division, Rawalpindi and others (1990 CLC 220), wherein it was held that:
         
"Following the afore-noted principle, I am clear in my mind that the order of this Court dated 20.4.1987 by which the order dismissing the writ petition was recalled, is not open to any objection. The objection of the learned counsel for the respondent is accordingly repelled".

10.       In view of the above, the instant appeal being without any substance is hereby dismissed. However, any observation made in this judgment would not influence the mind of Appellate Court while deciding case of the parties on merits in accordance with law.

SL/190/P                                                                                             Appeal dismissed.