2025 PLP 794 (MLD)

Raza Ali Khan, J.

The captioned appeal, by leave of this Court, stems from the judgment of the learned High Court dated 29.05.2023, whereby the appeal preferred by the appellant herein was dismissed.

2. The facts of the case are that respondent No.1, herein, instituted a suit against the Bank of Azad Jammu and Kashmir (AJK Bank) seeking recovery of an amount of Rs. 4,500,000 along with hospital expenses amounting to Rs. 500,000/- and counsel fee amounting of Rs. 300,000 and defamation charges, total 6,000,000/-, asserting that he had opened an Account bearing No. BMB 270 in the AJK Bank, Garhi Dupatta Branch, and made substantial deposits transactions into the said account, supported by deposit receipts issued by the Bank. It was further claimed that the Bank had issued two cheque books bearing serial numbers 0787261 to 0787270 and 0828661 to 0888670 in favor of the plaintiff-respondent. The plaintiff-respondent also alleged that he had only withdrawn a sum of Rs. 300,000/- from his account using cheque book bearing numbers 787262, 787263 and 787264, which withdrawals were admitted by the Bank. Additionally, it was averred that the version presented by the plaintiff-respondent had been acknowledged by proforma-respondent No.5, herein, who holds the position of Regional Chief, AJK Bank, Muzaffarabad. Following the necessary proceedings, the Banking Court passed decree of Rs. 4,349,358/- in favor of the plaintiff-respondent. Aggrieved by the decision, the appellant, herein, filed an appeal before the learned High Court. However, after conducting the requisite proceedings, the learned High Court dismissed the appeal through the impugned judgment dated 29.05.2023, primarily on the ground of limitation.

3. Khawaja Ansar Ahmed, the learned Advocate representing the appellant, contended that the impugned judgment of the High Court is contrary to law, facts, and the evidentiary record, and as such, it is liable to be set aside. He further argued that the learned High Court failed to consider the critical fact that the judgment and decree of the trial Court were issued without jurisdiction, rendering the question of limitation inapplicable to the present case. The learned counsel emphasized that it is an admitted fact that the proceedings before the trial Court were governed by special law, and no issue of "finance" was involved, thereby excluding the plaintiff-respondent from the definition of a "customer" as provided in section 2(c) of the said Act. He further submitted that the learned High Court's observation, that the trial Court's judgment was announced in the presence of the parties, is factually incorrect, as it is based on an unsigned order from the trial Court, which is unreliable and cannot form the basis of such a finding. The learned counsel asserted that the judgment of the trial Court was communicated to the appellant via notice, a fact explicitly mentioned in the appellant's application for the condonation of delay. However, despite this clear evidence on record, the learned High Court dismissed the appeal without duly considering these material facts. In the light of the foregoing, the learned counsel concluded his submissions by earnestly praying for the acceptance of appeal and setting aside the impugned judgment.

4. Conversely, Mr. Waheed Bashir Awan, the learned Advocate representing the respondent, contended that the impugned judgment of the learned High Court is in consonance with law, the facts, and the record of the case. He further submitted that the appeal before the High Court was time-barred, and thus, the learned High Court committed no illegality in dismissing the appeal as it was filed beyond the prescribed period of limitation. The learned counsel maintained that the judgment in question was rendered after application of a sound judicial mind, and therefore, warrants no interference by this Honorable Court.

5. We have carefully considered the arguments advanced by the learned counsel for both the parties and meticulously reviewed the record made available to us. In the present case, the primary issue pertains to limitation, as the learned High Court dismissed the appeal on the ground that it was filed beyond the prescribed period of limitation. The appeal was preferred by the appellant on 13.12.2021 against the judgment and decree dated 14.09.2021, exceeding the statutory limitation period of thirty days as stipulated under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. While the learned counsel for the appellant raised certain arguments on the merits of the case, such arguments can only be considered once the hurdle of limitation is overcome. During the proceedings, the learned counsel for the petitioner argued that there was sufficient cause for the delay, asserting that the judgment and decree of the trial Court were not within the appellant's knowledge. He contended that upon gaining such knowledge, the appellant obtained attested copies of the judgment, got sanction to file the appeal, and engaged counsel after completing all the necessary legal formalities, thus the appeal was filed within the limitation period from the date of knowledge. However, this cause for delay is not substantiated by the record. The judgment and decree were announced on 14.09.2021 in the presence of both the parties, and before the appeal was filed, execution proceedings had already been initiated by the Banking Court. Therefore, the reason advanced for condonation of delay is misconceived. In our considered opinion, without first overcoming the barrier of limitation, the Courts are not justified in addressing the merits of the case. The delay can only be condoned if a sufficient and valid cause is demonstrated in the application seeking such condonation. The learned High Court while relying upon the cases reported as Muhammad Aslam and another v. Muhammad Rashid1 and Azad Government and another v. Mujahid Hussain Naqvi and2, has rightly deemed the appeal as time barred and dismissed the same without delving deep into the merits of the case. In view of the above, this appeal stands dismissed with no order as to costs. MQ/19/SC(AJ&K) Appeal dismissed.