2022 SCMR 1868
Whether the time consumed by a litigant in payment of cost of the certified copy could be excluded under the newly added sub section (5) of section 12 of the Limitation Act while computing the period of limitation. OR, in other words upon filing of application for the grant of certified copies of the judgment, decree or order, the time would stop, leaving upon the Court to repare the certified copies at its own expenses and then issue intimation notice to the litigant to collect so that the period of limitation could commence.
Perusal of the pre-amended Section 12 of the Act reveals that it details the manner in which period of limitation prescribed for any suit, appeal or application, is to be reckoned. It provides for the exclusion of certain time period for obtaining the certified copies by prescribing it as "Lime requisite" for obtaining a copy of the order appealed. However, the provision of Section 12 of the Limitation Act providing exclusion of "time requisite" are applicable only after the application for certified copies is submitted, and the consistent view of this Court has been that the "time requisite" includes only that period of time which is taken up in drawing up the judgment, decree or order by the official of the Court in preparing and issuing the same, and does not include the period of time consumed by the litigant. The reason being that these provisions were always interpreted keeping in view the rules in the field for obtaining certified copies of decree or order such as rule 128 of the Sindh Chief Court Rules as well as rule 324 of the Sindh Civil Court Rules which provided that "the preparation of copies not commenced until prescribed fee deposited". A similar provision is found in "Rules & Orders of the Lahore High Court Court; volume V Chapter 5, Part B(6)(v) which provides that every application for attested copy will be entertained subject to deposit of cost in advance. It appears that these rules were adopted by rest of the High Courts except Sindh, which as stated, had its own rules. Likewise, rule 133 of the Sindh Chief Court Rules as well as rule 329 of the Sindh Civil Court Rules provide for the manner in which copies were to be certified and were to contain the endorsement of following particulars:"
(I) the date of application for copy;
(2)the date of estimate offee
(3)the date of deposit of estimate fee & the day of supply of stamps;
(4)the date of certification by Chief Ministerial Officer; and
(5)the date of delivery of the copy.
The case-law developed on the pre-amendment Section 12 throughout would reflect that the period prescribed for filing of appeal or the other prescribed proceedings would not stop, merely upon filing of application for the certified copies unless the fee/cost for the certified copies was paid. However, the time consumed by the office of the Court, for assessment of cost/fee would be excluded while computing the period of limitation. However, filing of application was treated as complete for the purposes of excluding time when it was entertained after payment of cost/ fee. The caselaw on pre-amended Section 12 revolved upon the interpretation of the keyword in that section i.e. "time requisite" and the consistent view of this Court was that the time consumed by the office of the court in preparing copies and/or at times failure on their part to intimate that the copies were made ready or that the fee was estimated, was held to be 'time requisite", and was accordingly excluded while computing the period of limitation but not the time consumed by a litigant on account of his negligence or default.
y of post amendment case law shows that the effect, purpose and limits of the newly added sub-Section 5 through a deeming provision was never examined, consequently, this brings us to the core issue of examining the newly added sub-Section. A bare reading of subSection 5 reflects that this legislative intervention has been made through a deeming provision, a legal fiction, to treat the intervening time between the day of making an application for the certified copy and the day actually intimated to the applicant by which the copy will be made ready for delivery to be the time requisite for obtaining the required copies, however,this provision cannot be read in isolation by employing literal meaning to it. The principles to interpret deeming provisions in a statute have been settled by this Court in its various pronouncements while interpreting deeming provisions in a statute by holding that the Court is bound to ascertain the limits, purpose and object for which the legislature has created the fiction by adopting deeming provision.
Keeping in mind the principles of interpreting a deeming provision, we need to determine the limits within which and the purpose for which the legislature has created this fiction. It appears that the legislature, by introducing subsection (5) to Section 12 of the Act has eliminated the controversy regarding the term "time requisite" and for the first time has defined the term by laying down that the "time requisite" for obtaining a certified copy of the decree, order or such other prescribed proceedings, would be deemed to be the time intervening between the day on which an application for certified copy is made and the day actually intimated to the applicant to be the day on which the certified copy is ready for delivery. The interpretation proposed by the learned ASC for the appellants that mere filing of an application would be suffice to stop the period of limitation would not only be against the spirit and purpose for which the legislature has created the fiction, but would also be against the purpose and object for which the legislative intervention was suggested by this Court. Besides, this interpretation would not only render the scheme of law behind the limitation Act as redundant but at the mercy of the litigant. Admittedly, the application for certified copies referred to is not entertained and/or processed till the prescribed fee/cost is paid and in case such interpretation is accepted that mere filing of application would stop the period of limitation then by not paying the prescribed fee/cost one could prolong the period of limitation as has happened in the instant case, which would be against the intention and purpose of the legislation. This interpretation not only appears to be against the reasons and object of the law of limitation but would substantially frustrate it. The law of Limitation seeks to prescribe the time limit for invoking remedies in order to curtail period of suspense and uncertainty and ensure peace of mind to the parties, and such interpretation would be against the very purpose of the statute as it would prolong the period of uncertainty and suspense.
It is also very important to note that the computation of period of limitation prescribed by Section 12 mainly deals with appeals, application for leave to appeal, application for review judgment and application to set-aside an Award and these proceedings have the minimum time period prescribed in the Limitation Act which ranges between 15 to 90 days excluding the time consumed for obtaining the certified copies. In case the interpretation proposed by the learned ASC for the appellants is accepted then one would file an application for certified copy and by not paying the cost could prolong the restricted period of limitation which would frustrate the very purpose by which the legislature has curtailed the period of suspense and uncertainty for the litigants to ensure their peace of mind. Coming back to the limits and the purpose for which the legislature has created this fiction by introducing sub-Section 5 to Section 12 of the Act. Admittedly, this legislative intervention of adding sub-Section 5 to Section 12 was proposed by this Court in the case of Ahmed Now (supra) and this Court before proposing the legislative intervention had examined the case law and to eliminate uncertainty and difficulty faced by the litigants regarding the period spent between the date when the copy is readyfor delivery and the date of obtaining the delivery of copy. A minute examination of pre-amendment case law would reflect that the dispute was mostly with regard to non intimation or wrong intimation of date on which the copy was ready for delivery.
In the circumstances subscribing to the proposed view that filing of application would stop the period of limitation appears to be against the spirit and purpose of the proposed amendment and is bound to bring disgraceful results unless all the rules requiring payment of cost/fee for the certified copies in advance are suitably amended/ repealed and provisions for supply of free certified copies are introduced. Consequently, we are of the view that filing of application pre-supposes the payment of cost for obtaining certified copies. In the instant case, since the appellants have consumed almost 38 days in payment of cost/fee for the certified copies and there appears to be no explanation on record to show that this non-payment could be attributed to the office in estimating the cost/fee for preparing the certified copies, therefore, cannot be excluded while computing the period of limitation. 23.Coming to the second submission that the limitation to commence from the date intimated through notice on which date the copy was ready for delivery. A perusal of sub-Section 5 shows that it provides commencement of period of limitation from the day actually intimated to the applicant to be the day on which the copy will be ready for delivery. The proposition propounded by the ASC that the intimation notice shall be issuedonce the copy is made ready and on receipt of such intimation the period of limitation would commence, in our opinion, from the very reading of sub-Section 5 appears to be ill-founded. A careful reading of sub-Section 5 shows that the intimation of the day on which the copy will be ready for delivery by the very language adopted by sub-Section 5 appears to be an intimation of a future date, a date expected by the office by which it would be in a position to make the copy ready for delivery. It does not envisage a notice after the certified copy is ready for delivery. In our opinion, it is a date intimated to the applicant after he has effectively made the application for the certified copies i.e. upon payment of cost/fee to be a date acknowledging receipt of cost/fee and providing a date on which copy would be ready for delivery. It also cast a duty upon the applicant that while making the payment of cost/fee for certified copy to obtain a receipt containing a date when the certified copies will be ready for delivery to eliminate once for all the pre-amendrnent dispute of non-intimation of date on which the certified copies are ready for delivery. Since the burden to demonstrate that the copies were not ready on the day intimated to the applicant to be the day on which the copy will be ready for delivery is upon the applicant, therefore, in case of non delivery of certified copy on the date intimated to the applicant then in order to eliminate the controversy and to discharge his burden the applicant should accordingly take a fresh date so that the dispute of applicant having different date and the copy containing different date of "copy ready for delivery" comes to an end.
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