2014 PLP 633 (CLC)

C.M.Nos.1-C and 2-C of 2012 C.M. No. 1-C of 2012 is an application under Order XLI, Rule 19, C.P.C. for recalling of order dated 5-7-2011 whereby appeal (E.F.A. No.514 of 2006) was dismissed for non-prosecution whereas C.M. No.2-C of 2012 is an application under section 5 of the Limitation Act for condonation of delay in filing C.M. No.1-C of 2012.

2. The applicant through an appeal (E.F.A. No.514 of 2006) under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 assailed the legality of order dated 11-10-2006 passed by the learned Banking Court-II, Lahore whereby his objection petition was dismissed. The above said appeal was dismissed for non-prosecution vide order dated 5-7-2011. Learned counsel for the applicant submits that his non-appearance before this Court on 5-7-2011 was neither deliberate nor wilful but was due to non-receiving of daily cause-list; and, that the applicant being a heart patient was under medical treatment and, therefore, had no knowledge about the date of hearing. Conversely the learned counsel for the respondent vehemently opposes this application and submits that no sufficient cause has been disclosed in the application; and, that the applicant has failed to explain the delay of each day in filing the application and thus both the applications are liable to be dismissed.

3. We have heard the learned counsel for the parties and examined the record.

4. The perusal of record shows that after dismissal of appeal (i.e. E.F.A. No.514 of 2006) for non-prosecution vide order dated 5-7-2011, the applicant on 21-12-2011,that is after five months, filed an application for obtaining certified copy of the above said order. The certified copy of order dated 5-7-2011 was supplied on 22-12-2011. After getting certified copy of the order dated 5-7-2011 the applicant on 10-1-2012 filed C.M. No.1-C of 2012 and C.M. No.2-C of

12. As per Article 168 of the Limitation Act the time begins to run from the date of dismissal and not from the date of knowledge of the dismissal. The period of 30 days has been provided for filing an application for the readmission of an appeal dismissed for want of prosecution. The petitioner after a lapse of 6 months filed the application for restoration of the appeal. The ground of non-receiving of cause-list from the Bar now-a-days hardly constitutes a sufficient cause for the reason that cause-list is not only provided to the Bar but is also displayed on the Website of the High Court. The office of the High Court also communicates the cause-list to the learned counsel through e-mail and SMS. The negligence of the counsel to get cause-list from the Bar or to check the Website or e-mail or SMS is not excusable on the well-known maxim: nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong). As regards the ailment of the applicant it is suffice to say that the prescriptions attached with the application pertain to the year 2009 and, therefore, do not substantiate the plea raised by the applicant. We have also noticed that this appeal has been filed by a panel of Advocates and there is no explanation with regard to their absence on 5-7-2011.Thus, no sufficient cause has been disclosed in C.M. No.1-C of 2012 for recalling of order dated 5-7-2011.

5. The applicant in para (vi) of the grounds of C.M. No.2-C of 2012 has stated that he came to know about the order dated 5-7-2011 through an employee of the decree-holder/bank. In the application neither the exact date of knowledge nor the name of the employee has been stated. This bald and wild assertion is not sufficient for the condonation of delay.

6. The applicant has neither disclosed a sufficient cause for restoration of appeal in C.M. No.1-C of 2012 nor explained the delay of each and every day in C.M. No.2-C of 2012 and thus both the applications are devoid of any merit and substance.

7. In view of above, C.M. No.1-C of 2012 and C.M. No.2-C of 2012 are dismissed. KMZ/A-93/L Applications dismissed.