Sunday, 20 May 2012

Time period for appeal in kashmir

PLJ 2009 Sh.C. (AJ&K) 17

Present: Iftikhar Hussain Butt, J.

MUHAMMAD JAVAID--Appellant

versus

Mst. ZARRIA BEGUM--Respondent

Civil Appeals No. 2 and 3 of 2006, decided on 3.12.2008.

AJ&K Family Courts Act, 1993 (XI of 1993)--

----S. 14--AJ&K Family Courts Procedure Rules, 1998, R. 22(i)--Limitation Act, 1908, Ss. 12(2)(3) & (4)--Suit for recovery of dower and the suit for dissolution of marriage were filed--Ex-parte decrees were passed--Assailed--Appeals were filed after expiry of prescribed period of limitation--Validity--Appeal against a decision or a decree passed by Family Court can be presented within 30 days of the date of decision or decree--Instant appeals were filed after nine days of expiry of prescribed period of limitation--Held: Rule 22(1) of AJK Family Courts Procedure Rules, postulates that an appeal u/S. 14 of Family Courts Act, shall be preferred within 30 days of the passing of decree or decision excluding the time requisite for obtaining copies thereof, provided the Appellate Court can, for sufficient cause extend the period--Appeals were dismissed being hopelessly time barred.

      [Pp. 18 & 19] A & B

Limitation Act, 1908 (IX of 1908)--

----S. 12(2)(3)(4)--AJ&K Family Courts Procedure Rules, 1998, R. 22(1)--Phraseologe of--Time requisite for obtaining copies--Period from the date of filing application for supply of copy and the date when it is ready for delivery has to be excluded only while computing the period of limitation--Held: After excluding the two days, the period spent for obtaining copies, the instant appeals have been presented after 9 days of the prescribed period of limitation--Appeals being hopelessly time barred were dismissed without going into the merits of the case.

      [P. 20] C

2000 SCR 537, rel.

Sardar Muhammad Idrees Khan, Advocate for Appellant.

Sardar Muhammad Sabir Kashmiri, Advocate for Respondent.

Date of hearing: 3.12.2008.

Order

As a common question of law has arisen in both the aforementioned appeals; therefore, these are consolidated and will be disposed off by this single judgment.

The facts precisely stated are that Mst. Zarria Begum, respondent herein, filed two suits, one for recovery of dower Rs. 1,60,670/- and the other for dissolution of her marriage on 28.3.2003. The appellant was proceeded exparte in both the suits. Consequently, exparte decrees were passed against him vide decision and decree dated 9.10.2003. Feeling aggrieved and dissatisfied, the appellant filed two separate applications for setting aside both the abovementioned decisions and decrees on 30.10.2003.

The learned Judge Family Court dismissed both the applications on 9.10.2003. Both the decisions have been assailed through the present appeals.

Sardar Muhammad Idrees Khan, the learned Counsel for the appellant, argued with vehemence that the learned Judge Family Court committed illegality while recording the impugned decisions and failed to appreciate the evidence of the parties; therefore, the impugned decisions are not sustainable. The learned Counsel pointed out that the Counsel for the appellant received the copies of the impugned decisions on 14.12.2005, which were sent to the appellant, who received the same on 27.12.2005. Thereafter, the appeals were prepared and filed on 5.1.2006; therefore, the appeals have been presented without any delay. The learned Counsel submitted that the impugned decisions may be set-aside and the cases may be decided on merits. In support of the arguments, reliance was placed upon 1997 MLD 1438.

Controverting the arguments raised by the learned Counsel for the appellant, Sardar Muhammad Sabir Kashmiri, Advocate, the learned Counsel for the respondent submitted that according to the version of the appellant, he applied for the copies on 13.12.2005, which were received by him on 14.12.2005; therefore, only the period of two days can be deducted. According to the learned Counsel, after deducting two days spent for obtaining copies, the appeals have been lodged after delay of 11 days; therefore, these may be dismissed in limine without going into the merits of the case.

I have carefully considered the arguments raised by the learned Counsel for the parties and also examined the record. It is admitted position of the case that both the cases were decided on 24.11.2005. The appellant applied for the copies on 13.12.2005, which were delivered to him on 14.12.2005 but the appellant filed appeals on 5.1.2006, after the expiry of prescribed period of limitation.

It will be relevant to point out that under Section 14 of AJ&K Family Courts Act, 1993, an appeal against a decision or a decree passed by Family Court can be presented within 30 days of the date of such decision  or decree. The following table will make it clear that the instant appeals were filed after nine days of the expiry of prescribed period of limitation.

Date of decision  24.11.2005.

Date of filing appeals  5.1.2006.

November    6 days

December    31 days

January     4 days

Total 41 days

The time elapsed for obtaining copies, which    2 days has to be deducted.

Total 41 days

Days deducted     2

Total days  39

Period of limitation    30 days

The above mentioned table categorically proves the fact that both the appeals have been filed after expiry of 9 days from the prescribed period of limitation. Rule 22(1) of AJ&K Family Courts Procedure Rules, 1998, postulates that an appeal under Section 14 of the Act shall be preferred within 30 days of the passing of decree or decision excluding the time requisite for obtaining copies thereof, provided the Appellate Court may, for sufficient cause extend the said period.

The phraseology of the proviso, the time requisite for obtaining copies has already been interpreted by the Apex Court in the case tilted Muhammad Ameen V. Muhammad Hameed & 21 others (2000 SCR 537) relevant page 541 in the following manner:--

"From the phraseology of subsections (2), (3) and (4) of Section 12 of the Limitation Act, which have been reproduced above, time requisite for obtaining a certified copy has to be excluded. As explained by the Supreme Court of Pakistan in Fateh Muhammad's case, discussed above, time requisite for obtaining the copy means "the interval between the date of application for supply of copy and the date when it is ready for delivery".

So far as the case law referred to by the learned Counsel for the appellant is concerned, does not render any help to him because it is beyond the controversial issue and have nothing common with the facts of the present case.

The perusal of the aforesaid authority makes it crystal clear that the period from the date of filing application for supply of copy and the date when it is ready for delivery has to be excluded only while computing the period of limitation. In this manner, after excluding the two days, the period spent for obtaining copies, both the present appeals have been presented after 9 days of the prescribed period of limitation. Therefore, both the appeals being hopelessly time barred are dismissed without going into the merits of the case. A copy of the judgment shall be annexed with relevant file.

(R.A.)      Appeals dismissed

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