2015 PLP 626 (CLD)

SADIQ HUSSAIN BHATTI, J.

This is an application under section 5 of the Limitation Act seeking condonation of delay in filing of the present appeal. Brief facts of the case, relevant for the disposal of this application, are that the appellant filed Suit No.914 of 1998 for recovery of Rs.9,108,349 against the respondents under : Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. This suit was partially decreed by the learned Judge of the Banking Court No.V, Karachi vide judgment dated 30th September, 1999. The appellant feeling aggrieved by the said judgment, preferred the present first appeal. Since there was some delay in the filing of the appeal, therefore, the appellant filed the present application under section 5 of the Limitation Act seeking condonation of delay. Learned counsel for the applicant/appellant submitted that 50% share capital of the appellant is owned by the Federal Government and, at the relevant time, the Federal Government had directed the appellant to furnish-a list of defaulters to the State Bank of Pakistan within a specified period and, therefore, the staff of the appellant was very busy in preparing such list in order to put the names of the defaulters on the Exit Control List (ECL). Learned counsel stated that in the appeal some technical grounds were taken for which involvement of the Accounts Department was necessary and as the Accounts Department of the appellant was busy in preparing the list of defaulters, therefore, some delay occurred in filing of the resent appeal. The learned counsel submitted that since the delay in filing the appeal was neither willful nor deliberate, therefore, the same may be condoned. It is an admitted position, as stated in para 4 of the affidavit to the listed application, that the appeal was filed after a delay of seven days. The reason advanced for such delay was that the staff of the appellant was busy in preparing list of defaulters for submission to the State Bank of Pakistan under the directions of the Federal Government so that the names of the defaulters may be placed on the ECL. As per the description given in the plaint as well as in the memo of this appeal, the appellant is a Banking Company; incorporated and functioning in Pakistan under the provisions of the Companies Ordinance, 1984 and fifty per cent of its share capital is owned by the Federal Government. Since condonation of delay in filing of the present appeal is sought on the ground that some directions were received from the Federal Government and the entire staff 'of the appellant was busy in carrying out the same, it is to be examined whether on such ground the delay in filing the appeal can be condoned. We are afraid that the appellant, on the pretext of being public functionaries, cannot seek any preferential treatment in the matter of condonation of delay. In this regard reference may be made to an unreported judgment delivered by one of us, Nadeem Akhtar, J, in First Appeal No. 16 of 2012 (Province of Sindh v. Deputy District Officer (Revenue) and others), wherein relying on the case of Muhammad Bashir and another v. Province of Punjab (2003 SCMR 83), it was held that the public functionaries are not entitled to any preferential treatment in the matter of condonation of delay and that they are to be treated on equal footing with an ordinary litigant. Since para 10 of the said judgment deals exhaustively with the point of limitation from different angles, it would be advantageous ..if the same is reproduced hereunder:-- "(10) In the case of Muhammad Bahir and another v. Province of Punjab, 2003 SCMR 83, the Hon'ble Supreme Court was pleased to hold that We are in no manner of doubt in reiterating and the well-settled principle that public functionaries are not entitled to any preferential treatment in the matter of condonation of delay and they are to be treated on equal footing with an ordinary litigant. There is also no cavil with the proposition that with the passage of time a valuable right accrues in favour of the opposite party, which should not be slightly disturbed and destroyed." It was further held that the object of a Superior Court, while exercising its discretionary jurisdiction, is to foster the ends of justice, preserve the rights of parties and to right a wrong. In Imtiaz Ali v. Atta Muhammad and another, PLD 2008 SC 462, it was Held by the Hon'ble Supreme Court that- the appeal, having been filed after one day of the period of limitation, had created valuable right in favour of the respondents, and no sufficient cause was found for filing the appeal beyond the period of limitation. The delay of only one day was not condoned by the Hon'ble Supreme Court in the cited case. In Lahore Development Authority v. Messer Sea Hawk International (Pvt.) Ltd. Lahore, 2003 CLC 269; it was held by the learned Lahore High Court that it is a settled principle of law that the Government statutory bodies are at par with the general public. In Pakistan Handicrafts, Sindh Small Industries Corporation, Government of Sindh v. Pakistan Industrial Development Corporation, 2010 CLC 323, it was held by this Court that limitation is not a technicality because it confers very valuable rights as held by the Hon'ble Supreme Court in the case of Imtiaz Ali (supra). ..." In view of the above quoted para from the said un reported judgment we are of the view that the appellant was not entitled to any preferential treatment on account of being public functionary. It was the duty of the concerned officer(s) to have seen to it that the appeal was filed within time. The appellant is a bank and there is no shortage of accountants in a bank. In any case it is not for us to advise the appellant as to how to manage its affairs. Ix is for the high-ups of the appellant to ensure that legal provisions for filing of an appeal-are properly complied with or they would have to face the consequences. In the above cited case of Imtiaz Ali, the Hon'ble apex Court did not condone the delay of one day as no plausible reason was shown for condonation thereof In the present cage there is delay of seven days for which the appellant has not been able to show any reason, except that the staff of the appellant, under directions of the Federal Government, was busy in preparing the list of defaulters for submission to the State Bank of Pakistan. This cannot he made a ground for condonation of delay. Thus, the appellant has failed to show sufficient cause for not making the appeal within the prescribed period of limitation. The learned counsel for the appellant was heard on 17-9-2014 and, for reasons to follow, the listed application was dismissed by our short order of the same date and consequently the appeal was also dismissed with no order as to costs. These are the reasons of the same. MH/P-32/Sindh Appeal dismissed.