2005 PLP 861 (CLD)

Malik Abdul Wahid for Appellant. Nemo for Respondent. Appellant through the filing of the present first appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, has called in question judgment and decree dated 17‑1‑2002, whereby the learned Banking Court, after proceeding ex parte against the appellant, decreed respondent's suit for the recovery of Rs.8,00,961 with costs and cost of funds, against the appellant.

2. Instant first appeal is admittedly barred by time, as such the appellant has filed the application under section 5 of the Limitation Act (C.M. No.1‑C of 2002) for the condonation of delay. The only ground urged in the said application is "that the delay is not intentional but due to the conscious mala fide effort on the part of the defendant who kept secret the question of service to the petitioner whereas the learned trial Court has also not recorded a declaration for the due service of the petitioner and passed the impugned judgment and decree dated 17‑1‑2002 when the suit was filed on 28‑11‑2001".

3. Firstly the aforenoted application for the condonation of delay is adverted to. The learned counsel for appellant; in support of his application, while reiterating the aforesaid pleas, has submitted that this is a "sufficient cause" for the condonation of delay in filing the appeal.

4. When the learned counsel for the appellant was asked to show as to how section 5 of the Limitation Act is applicable in the present case, the learned counsel replied that as the appellant was not negligent, therefore, the delay may be condoned.

5. In the above perspective, to our minds, the prime question, which has arisen for determination by this Court is as to whether section 5 of the Limitation Act is applicable in the present case. Section 29 of the Limitation Act provides that where in a special or local law different periods of limitation have been prescribed, the provision of section 5 of the Limitation Act is not applicable. It may be noted here that under the ordinary law, a period of 90 days has been prescribed for filing the first appeal, under Article 156 of the Limitation Act, before this Court, while the present case is governed by the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, which is a special law and section 22(1) of the Ordinance, 2001 prescribes a period of 30 days for filing the first appeal, before this Court, against the judgment and decree passed by the learned Banking Court.

6. From the above, it is thus clear that the special law has provided different periods of limitation, for filing the first appeal in this Court, than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstances. In the above backdrop, we are of the firm view that the provisions of section 5 of the Limitation Act are not applicable in view of the provisions of section 29 of the Limitation Act, as per law laid down in the cases of Allah Ditta v. Farooq Ahmad and 3 others (PLD 1979 Lahore 917) and Bashir Ahmad and others v. Messrs Habib Bank Ltd. (1990 CLC 1105) and by the Hon'ble Supreme Court of Pakistan in the reported cases of Ali Muhammad and another v. Fazal Hussain and others (1983 SCMR 1239) and Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286). Being guided by the aforesaid law declared, the application in hand, which has been filed under section 5 of the Limitation Act, is misconceived, incompetent and not maintainable. Needless to add that the contentions raised by the learned counsel in this regard are devoid of merits in view of the aforenoted law declared by the Hon'ble Supreme Court of Pakistan, which, as per Article 189 of the Constitution of the Islamic Republic of Pakistan is binding upon all the Courts.

7. Even if it be taken, that section 5 of the Limitation Act is applicable in the present case, still there is no "sufficient cause" for the condonation of delay. The impugned judgment and decree was passed on 17‑1‑2002 while the present appeal was filed on 6‑5‑2002. It is thus evident that the appellant filed the appeal after the expiry of period of limitation. To our minds, the plea raised by the appellant, in the application under discussion, does not disclose sufficient cause for not preferring the appeal within the period prescribed under the law and for the condonation of delay within the parameters set up under section 5 of the Limitation Act. No sufficient cause for the condonation of delay has been made out. In the above background the application filed by the appellants under section 5 of the Limitation Act is incompetent, not maintainable and devoid of merits as well, thus stands dismissed on both the counts.

8. With the dismissal of the aforenoted application, the appeal is barred by time, thus we are constrained to hold that the appeal cannot proceed further having been filed beyond the period of limitation prescribed under the relevant law, thus the same stands dismissed leaving the parties to bear their own costs. S.A.K./M‑877/L Appeal dismissed.