DIRECTOR, DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION, (CUSTOMS AND EXCISE, KARACHI VS Messrs TESSORI TRADING CO., (PVT.) LTD. and another
2004 P T D 1957
[Karachi High Court]
Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ
DIRECTOR, DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION, (CUSTOMS AND EXCISE, KARACHI
Versus
Messrs TESSORI TRADING CO., (PVT.) LTD. and another
Spl. Customs Appeals Nos. 140 and 141 of 2002, decided on /01/.
th
December, 2003. (a) Limitation Act (IX of 1908)‑‑‑--
‑‑‑‑S. 4‑‑‑Expiry of limitation on the day on which High Court was closed due to summer vacation‑‑‑Filing of appeal on first opening day after vacation ‑‑‑Effect‑‑‑Notification provided that High Court and its Branches would remain closed due to summer vacation, but during such period, petitions would be received on working days ‑‑‑Such notification could not take precedence over provision of S.4 of Limitation Act, 1908‑‑‑Term "petition" as used in such notification would not cover appeal‑‑‑Relevant rules of Sindh High Court pertaining to long vacation and holidays only required for making suitable arrangements for "urgent work" during Court holidays‑‑‑Appeal was not a work of urgent nature‑‑ Mere fact that appeal was about to become time‑bared would not itself make its presentation as work of urgent nature‑‑‑Appeal was, with in time.
Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238; Jumma v. Maulvi Mubarak 1971 SCMR 779; Lehar Khan v. Amir Hamza 1999 SCMR 108; Nooruddin and 3 others v. Pakistan through the Secretary, Ministry of Communication, Government of Pakistan 2000 SCMR 354; Fazal Karim and another v: Ghulam Jilani and others 1975 SCMR 452; Ikramullah v. Said Jamal 1980 SCMR 375; Appeal 746 in Suit No. 383 of 1886; Ranchordas Tri Bhowandas v. Pestonji Jehamgir (1907) Vol. IX Bombay Law Report 1329 and Nachiyapa Mudait and others v. Ayyasama Ayyar ILR Vol. V Madras Series 189 ref.
(b) Limitation Act (IX of 1908)‑‑‑--
‑‑‑‑S. 4‑‑‑Closure of Court on the day of which limitation expired‑‑ Exclusion of time‑ ‑‑Principle underlying S.4 of Limitation Act, 1908 is that party should not be prejudiced by act of Court.
(c) Customs Act (IV of 1969)‑‑‑--
‑‑‑‑Ss. 194‑A & 196‑‑‑Appeal before High Court against order of Tribunal by Director, Directorate General of Intelligence and Investigation (Customs and Excise)‑‑‑Maintainability‑‑‑Right of appeal in terms of S.196 of Customs Act, 1969 was restricted to "an aggrieved person" and "Collector" instead of an Officer of Customs‑‑‑Director could not be termed as "Collector" in absence of any authorization for exercise and discharge of functions of Collector‑‑‑Director could not file appeal as he was not an aggrieved person‑‑‑Appeal was not maintainable.
Spl. Customs Appeals No. 282 of 2002 and 283 of 2002 (Director, Directorate General of Intelligence and Investigation, (Customs and Excise), Karachi v. Messrs Al‑Faiz Industries (Pvt.) Limited and others) by order, dated 11‑12‑2003 rel.
Raja Muhammad Iqbal for Appellants (in both appeals).
Khawaja Naveed Ahmed and Mrs. Ismat Mehdi for Respondents.
Date of hearing: 4th December, 2003.
JUDGMENT
SHABBIR AHMED, J.‑‑‑The pleas involved in above appeals are common, it is therefore, considered proper to deal with and to dispose them of by this order.
In above appeals, two folds pleas have been raised by the respondents; first with regard to the maintainability of the appeal filed by the Director, Directorate General of Intelligence and Investigation, (Customs and Excise) and second that the appeals filed on 5‑8‑2002 are barred by time as the same were filed after the expiry of period of limitation.
Adverting to the last plea first with regard to the limitation, it was contended by the learned counsel for the respondents that the fact are not disputed, the impugned order was passed on 19‑3‑2002, copy whereof was dispatched on 10‑5‑2002 received by the appellant on 13‑5‑2002, whereas, the appeals were filed on 5‑8‑2002.
Learned counsel for the respondents further submission was that in terms of subsection (2) of section 196 of the Customs Act (in short the Act), the appeal was to be filed within thirty days of the date upon which an aggrieved person or the Collector is served with an order under section 194‑B of the Act. It was pointed out that the period of limitation viz. thirty days expired on 13‑6‑2002, falling during the vacation. It was also pointed out that by Notification No. GAZ/XVII. 13, Karachi, dated 30th April, 2002, this Court notified the .closure of High Court and its Branches for Summer vacation from Monday, the 3rd June, 2002 to Saturday, the 3rd August, 2002 and it was also notified therein that 'during‑the said period of vacation, petitions will be received daily an working days as usual.' (emphasis under lined).'
On the above premises, it was argued by the learned counsel for the respondents that the office of the Court is part of the Court and that the appeal could have been' filed during vacation, therefore, the provisions of section 4 of the Limitation Act cannot be resorted to by the appellant to claim extension in period of limitation, for filing appeal. on first opening day after vacation. To support her contentions, she referred the following cases:‑‑
(i)Fateh Ali Khan v. Subedar Muhammad Khan (1970 SCMR 238) and (ii) Jumma v. Maulvi Mubarak (1971 SCMR 779). In first case (a Full Bench case) it was held that section 4 of the Limitation Act can only be applied in cases where there was no arrangement for doing the business of Court during the vacation, by interpreting, Rule 3. of Order 11 of the Supreme Court Rules, 1956 and notification issued thereunder, notifying that the Registries of the Supreme Court will remain open for their ordinary and routine business during vacation. The same view was reiterated in second case and the benefit of section 4 of the Limitation Act was not extended.
Same view was again reaffirmed in Lehar Khan v. Amir Hamza (1999 SCMR 108), wherein the plea raised was that the period of limitation stands extended and the petition could be filed due to closure of Court for summer vacation on first opening day of the Court in view of section 4 of the Limitation Act. Such plea did not find favour in view of the provisions of the Rule 2 of Order II of Supreme Court Rules, 1980 with the following observations:
'Suffice it to say that when this Court is in vacation it cannot be said that its Registries are also closed. As a matter of facts, the Registries are always open for receiving the petitions and other, work. The Hon'ble Judges. of this Court invariably work throughout vacation. Reference may also be made to the provisions contained in Rule 2 Order II of the Supreme Court Rules, 1980 specifically providing for the offices of the Court to remain open during the vacation and winter holidays. The Hon'ble Chief Justice of Pakistan has also declared vide Office Order No.F‑9/2/7385/SCA, dated 3‑7‑1985, the Registries of the Supreme Court of Pakistan as non‑vacation offices. Clearly, the offices of the Court remain open during vacation and the winter holiday and usual working hours are observed. There is, therefore, no force in the contention that as the Court was on vacation the petitioners did not file the petition because the Registries of the Court are always open for receiving petitions and other‑ work.'
The above cases turn upon the terms of Rule 3 of Order II of Supreme Court Rules, 1958 and Rule 2 of Order II of Supreme Court Rules, 1980 (analogous/similar provision), for providing for the offices of the Court to remain open during vacation and winter holidays, to conclude that section 4. of Limitation Act can only be applied in cases where there was no arrangement for doing the business of the Court during vacation:
On the other hand, it was contended by the learned counsel for the appellant that the Court was on vacation and the last day for filing of appeal falling on 13‑6‑2002 when the High Court was closed for vacation which automatically extended the limitation till the opening of the High Court in terms of section 4 of the Limitation Act; which provides that where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court reopens. Thus it was contended that the appeal preferred on first opening day was in time. In support of his contentions, he referred the case of Nooruddin and 3 others v. Pakistan through the Secretary, Ministry of Communication, Government of Pakistan (2000 SCMR 354). The facts are distinguishable with the facts of the instant case. In referred case the judgment was announced during the vacation on 20‑6‑1997. Decree was also drawn during the vacation. The defendants' plea was that they never came to know about the judgment being pronounced applied for the necessary certified copies on first opening day i.e. 4‑8‑1997, obtained the same on 7‑8‑1997 and preferred the appeal on the same day which was admitted to regular hearing without any objection as to the limitation, as a precaution, an application for condonation of delay was also filed that application was disposed of with the observation that since the appeal filed was well within time no occasion arose for condonation of delay.
Learned Judges in reaching the conclusion observed that they did not find that a party was under obligation to apply for a copy of the judgment during the period when the Court is officially closed even though the office of the Court is functioning. The order was challenged by filing petition for leave to appeal.
The leave was refused by apex Court with the observations that the order was announced when the Court had gone into summer vacation, no notice of such announcement except, apparently, in the cause list occurred and there is nothing on the record to show that either any notice was addressed to the parties for such announcement or a copy of the cause list was delivered to the concerned Advocates and the plea of the appellant was that they never came to know of announcement of the judgment during vacation. It was held that in such circumstances when the pronouncement of the judgment could not be counted against the appellant because of want of notice, the appeal would obviously be in time, and the High Court rightly opined it to be so. Reference of this case in instant case, is inapt, both cases are distinguishable on facts.
The similar plea was raised before Supreme Court for exclusion of period of limitation during which the Court remain closed for vacation in terms of section 4 of the Limitation Act in (i) Fazal Karim and another v. Ghulam Jilani and others (1975 SCMR 452) and (ii) Ikramullah v. Said Jamal (1980 SCMR 375) with reference to the circulars issued by High Court and District Court with regard to the arrangement for receipt of petitions during vacation. In first case, the effect of Notification issued by the Peshawar High Court to the effect that during the period of vacations petitions will be received daily from such persons as may choose to present them except on Sundays and public holidays was examined. The view taken was as follows:
'From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision.'
In second case section 4 of the Limitation Act was interpreted with reference to the circular issued by District Judge with regard to disposal or urgent work during long vacation, following view was expressed:‑‑
Section 4 of the Limitation Act, does not ex end the period of limitation prescribed under the law; it simply permits a suit, appeal or application to be filed on the re‑opening of the Court, if the period of limitation expires on a day when the Court is closed. The language of section 4 itself speak of the expiry of the period of limitation, and the principle underlying the section is that this plaintiff or the applicant should not be prejudiced by the act of the Court, namely, its closure on the day when the limitation expires. Section 4, therefore, does not extend the period of limitation, but merely provides a device to overcome to closure of the Court own the day the limitation expires.
We are of the view that section 4 of the Limitation Act provides that the period during which the Court remains closed on account of vacation, has to be excluded from the computation or limitation and the Notification issued by this Court referred to earlier cannot take precedence over the statutory provision, particularly when the relevant Rules of this Court pertaining to long vacations and holidays only requires, that suitable arrangement shall be made for `urgent work' during Court holidays and the long vacation. We are of the view that the appeal is not a work of urgent nature, but the fact that appeal is about to become time‑barred will not of itself make the presentation of it as work of urgent nature.
The above view expressed by us get support from the view expressed by Sir Charles Sargent and Farran, 33, learned members of Division Bench of Bombay High Court in Appeal 746 in Suit No. 383 of 1886, which was heard on 24th November, 1893 (unreported) followed by Justice Russell in Ranchordas Tri Bhowandas v. Pestonji Jehangir ((1907) Vol. IX Bombay Law Report 1329), the passage is reproduced as follows:‑‑
There the question was raised whether the appeal was within time and the Court held that `under section 5 of the Limitation Act if the time for filing an appeal expires in the vacation, it can be admitted on the first day the Court re‑opens. The notice put up by the Prothonotary provides for `urgent' work during the vacation and we cannot consider the mere filing of an appeal, as work of a `urgent' nature.'
It is also doubtful that the term `petition' as used in the notification will cover appeal as well.
This view gets support from the view taken in Nachiyapa Mudali and others v. Ayyasama Ayyar (ILR Vol. V Madras Series 189) by the Full Bench of the Madras High Court wherein similar notification came for examination and plea was accepted that the notification did not refer to appeals, and if the appellants were misled by the terms of the notification, this circumstance would be a sufficient cause to excuse the delay in the presentation of the appeal, as a consequence thereof case was remitted to District Judge to record a finding on such plea. The same view was expressed by Afzalzullah, J. (as he then was) in Abdul Razaak case (supra) that, even otherwise, it is doubtful that the word `petition' as used in the notification will cover a Memorandum of appeal. Therefore, we are of the view that the principle underlying the section is that the party should not be prejudiced by the act of the Court, namely its closure on the day when the limitation expires and therefore, it merely provides a device to overcome the closure of the Court on the day the limitation expires. Therefore, the appeals filed on opening day after vacations would be in time. Therefore, the plea that the appeals are barred by time is not tenable and fails.
With regard to the first contention, the Division Bench of this Court, consisting of one of us (Mr. Justice Shabbir Ahmed) with Mt. Justice Gulzar Ahmed in Spl. Customs Appeals No. 282 of 2002 and 283 of 2002 (Director, Directorate General of Intelligence and Investigation, (Customs and Excise), Karachi v. Messrs Al‑Faiz Industries (Pvt.) Limited and others) by order, dated 11‑12‑2003, has taken the view that the Director cannot be termed to be the `Collector' in absence of any authorization for exercise and discharge of functions of the Collector nor he is an aggrieved person, therefore, the Director cannot file the appeal. Resultantly, the above appeals filed by the Director, Directorate General of Intelligence and Investigation, (Customs and Excise), are not competently filed. Therefore, the appeals are not maintainable.
The above view is also re‑enforced on comparison of the provisions for filing appeal before the Tribunal and before High Court as contained in sections 194‑A and 196 of the Act respectively. Section 194‑A, provides that any person or an officer of the Customs aggrieved by any order classified in clauses (a) to (e) thereof may appeal to the Appellate Tribunal. Subsection (2) thereof also permits the Board or the Collector of Customs may if it or as the case may be, he is of the opinion that an order passed by Collector (Appeals) under section 193 is not legal or proper, direct the appropriate officer to appeal on its or as the case may be on his behalf to the Appellate Tribunal against such order. Whereas, in terms of section 196 right to file appeal, against the order of Tribunal before High Court, has been restricted to `an aggrieved person' and the Collector, which reflects the intention of the Legislature in restricting the scope of right to appeal against the order of the Tribunal before High Court to `the Collector instead of an Officer of the Customs.
We have no reasons to take contrary view. We adopt the same view that the appeals filed by Director, Directorate General of Intelligence and Investigation, (Customs and Excise), Karachi are not maintainable. Consequently, the appeals fail on the first plea.
Resultantly, the above appeals are dismissed in limine alongwith listed applications with no order as to costs.
S.A.K./D‑5/KAppeal dismissed.