2015 PLP 972 (CLD)

AMIN-UD-DIN KHAN, J.

Through this appeal, judgment and decree dated 6-2-2008 passed by the learned Judge Banking Court-I, Gujranwala, have been assailed.

2. The appeal was first time came up for hearing before this court on 11-1-2012 when this court issued pre-admission notice to the other side to consider the question of delay, filing of appeal within limitation and removal of objections with a long delay. Subsequently on 7-2-2013 after hearing the learned counsel for the parties notice was issued to the respondent and record of trial Court was also requisitioned.

3. The facts are that judgment and decree were passed on 6-2-2008. The appellants applied for issuance of certified copies of the judgment and decree on 7-2-2008. The same were prepared and delivered to the appellants on 7-4-2008. The appeal was filed on 6-5-2008 i.e. on 29th day of the limitation. The office of this court had raised nine objections. The appellants received back the appeal on 14-5-2008 and refiled on 26-6-2008 with an endorsement that objections have been removed. The office noted that objections Nos.11 and 18 have not been removed. The appeal was again received back and refiled on 13-9-2011, this period is more than three years. This case has checkered and distinguishable history. It is not the case of appellants that the objections were not in the knowledge of appellants when the file was received back first time on 14-5-2008 and refiled on 26-6-2008. It is also not denied that all the objections raised by the office were removed. The objection of non-deposit of advance printing charges was first time raised and as per learned counsel for the appellants the charges have been deposited on 7-7-2011 bearing receipt No. 480 and the appeal was refiled on 13-9-2011. In this case when the case of appellants that the office raised frivolous objections, it is not the appellants themselves to decide that the objections are valid or frivolous. They have to remove the objections or request the office to place the matter before the court for determination of their assertions that whether the office objections have some value or the same are frivolous one. The appellants have opted to re-file the appeal first time without removing two of the objections raised by the office. The objection with regard to non-deposit of advance printing charges as well as a certificate required at objection Sr.No.18 were not removed, the appeal was received back and refiled on 26-6-2008 without the prayer that same be placed before the court and when again the office raised the objection that objections at Sr.Nos.11 and 18 have not been removed, the appellants opted to remain indolent and slept over his right for a period of more than three years and admittedly the appellants removed the objections and refiled the appeal on 13-9-2011.

4. Though the appeal was filed first time within prescribed period of limitation. It was also the duty of appellants, when office raised the objections, to receive back the appeal and refile within the reasonable time which is ordinarily seven days after removing all the objections raised by the office. First time the complete objections were not removed and appeal was refiled after more than one month of receiving the same and second time when again the appeal was received for removing two objections already raised by the office, which were not removed earlier, the appellants refiled the appeal after more than three years, this act of the appellants is contumacious one. We are conscious of the fact that when the appeal is filed within the prescribed period of limitation under the law, then the subsequent delay to comply with the instructions or the objections raised by the office of this court i.e. Deputy Registrar (Judicial), there are two options with a litigant party; one is to comply with the objection raised by the office and second is to request the office of this court to place the matter before the court for determination with regard to validity of office objections. Certainly in case of second option the party satisfies the court that office has wrongly raised the objection. In case in hand, the only assertion of learned counsel for the appellants that office has raised frivolous objections. On the other hand, same were removed by the appellants after more than three years of filing of appeal. They never requested the office to place the case before the court for determination of objection whether the frivolous objections have been rightly raised. Now the argument of learned counsel for the appellants that the objections were frivolous, has no force when the appellants slept over their right for more than three years. This attitude of a litigant is absolutely not bearable, as in this case the impugned judgment and decree are of the year 2008 and the appellants succeeded in filing a proper and complete appeal in the year 2011 which is beyond more than three years of period of original limitation of filing of appeal under the Financial Institutions (Recovery of Finances) Ordinance, 2001. In this view of the matter, the conduct of appellants cannot be ignored.

5. Though C.M. No.1-C of 2011 has been filed under section 5 of the Limitation Act, 1908. Section 5 of the Limitation Act is not applicable in condonation of delay, if any, in banking matters when it is a special law. We take light from the judgments reported as "2005 CLD 857 (Protein and Fats International (Pvt.) Limited through Chief Executive and 2 others v. Capital Assets Leasing Corporation Limited through Manager), 1983 SCMR 465 (Manzoor Hussain and others v. Sajawal and others) and 1983 SCMR 1239 (Ali Muhammad and another v. Fazal Hussain and others)." Even otherwise, we are of the view that when the appeal was filed within the prescribed period of limitation, for condonation of delay in refiling the appeal the appellants were required to satisfy the court in accordance with High Court Rules and Orders. For ready reference, Rules 9 and 9-A of Part-A of Chapter-1 of Volume V of Rules and Orders of the Lahore High Court, Lahore are as under:- "

9. POWER TO RETURN PETITION FOR AMENDMENT. The Deputy Registrar is authorized to return for amendment, or making up the deficiency or filing the requisite documents within a time to be specified on the objection memo. Appendix I in an order to be recorded by him on the petition, any petition not drawn up in conformity with the foregoing directions. 9-A. A list of petitions, appeals, etc. ordered to be returned shall be notified on the Notice Board and petitions, appeals, etc, not received back within seven days of the publication of the list shall be placed before a Judge of the High Court for orders on a date to be notified by including such petition in a motion cause list. It is made clear that any delay in placing such petition before the Court or issuing the list shall not furnish any justification for non-receipt of the returned petition in time and non-compliance of the objection taken within time specified by Deputy Registrar." In this case the position is clear when the office raised the objection the appellants received back the appeal and refiled the same without removing some of the objections, then received back the file of appeal and finally removed all the objections and consumed more than three years in this procedure and no explanation has been given for consuming three years. This contumacious act of the appellants does not entitle them any leniency. In these circumstances, we dismiss this appeal on the ground of contumacious act of the appellants in refiling the appeal after a delay of three years after removing all the objections. KMZ/P-2/L Appeal dismissed.