2019 PLP 1056 (CLD)

C.M. No. 828-C of 2018 This is an application under section 5 of the Limitation Act, 1908 (ACT) for seeking condonation of delay in filing the Regular First Appeal.

2. At the outset of hearing, learned counsel for the applicants has been confronted with the fact that present application is not maintainable in view of the fact that section 5 of the Limitation Act, 1908 (Act) is not applicable to section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance), therefore, any delay in filing an appeal under section 22 of the Ordinance beyond the prescribed period of limitation cannot be condoned.

3. Replying to the above, learned counsel for the applicants submits that on 21.03.2017 the case was heard by the learned Banking Judge and the judgment was reserved and in view of the fact that no intimation was sent to the applicants qua decision of the suit, therefore, as and when applicant came to know about the decision, they promptly applied for the certified copies and after obtaining the same filed the appeal therefore the appeal is within time and as abundant caution this application has been filed.

4. Arguments heard. Record perused.

5. For analyzing the afore-noted issue, it is imperative to reproduce section 5 of the Act, which reads as under: "

5. Extension of period in certain cases. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation. The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section." (emphasis supplied)

6. A perusal of the afore-noted provision reveals that any appeal filed under a particular law will only be entertained beyond the period of limitation and the delay can be condoned, provided this Section is made applicable (to the Act/Ordinance under which the appeal has been filed) through an enactment, otherwise Section 3 of the Act will come into motion and the appeal filed beyond the period of limitation has to be dismissed.

7. A bare reading of the Ordinance would show that although Act has been made applicable to the proceedings before the Banking Court, however, the same has not been made applicable to the appellate Court as defined in section 22 of the Ordinance, therefore there is no provision in the Act to empower the appellate Court to condone the delay of to entertain an appeal under Section 22 of the Ordinance, beyond the prescribed period of limitation.

8. Keeping in view the above circumstances, since a period of 30 days has been prescribed in section 22 of the Ordinance to file an appeal, therefore, in view of section 29 of the Act, the period of limitation prescribed under the Ordinance would prevail and any appeal preferred beyond that period of limitation will not be entertained by any court and delay if any caused in filing the same cannot be condoned.

9. Even otherwise, perusal of the record would show that impugned judgment and decree was passed on 21.03.2017 (the day it was heard as the judgment was never reserved), whereafter, on 08.04.2017 certified copy was applied, which was prepared on 25.04.2017 and was received by the applicants on 27.04.2017, whereafter, the appeal was filed on 23.05.2017 i.e. beyond the period of limitation.

10. It is rudimentary principle of law that delay of each and every day, which is caused in availing a remedy, is to be explained. For reference reliance can be placed on Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs (PLD 2011 SC 657), Qaisar Mushtaq Ahmad v. Controller of Examination and others (PLD 2011 SC 174), Muhammad Amjad v. Senior Superintendent of Police (Operations), Lahore and others (2010 PLC (C.S.) 838) and The Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf [1973 SCMR 304].

11. It has also been settled by the superior courts that even a void order has to be assailed within the period of limitation prescribed under the law. Reliance in this regard can be placed on Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2015 PTD 107), Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2014 SCMR 1594), Gen. (R.) Parvez Musharraf v. Nadeem Ahmed, (Advocate) and another (PLD 2014 SC 585) and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others (2013 SCMR 587).

12. So far as the contention of the learned counsel for the applicants that no intimation was given to the applicants about the decision of the suit, needless to say that the suit was heard by the learned Banking Judge on 21.03.2017 and on the same day the judgment was announced, which fact is also reflected from the judgment and decree, therefore, this contention of the applicants does not hold good.

13. In the above circumstances, even if there was a provision in the Ordinance for seeking condonation of delay in filing the appeal, the same could not have been condoned.

14. In view of the above, this application being not maintainable/meritless is dismissed. MAIN CASE

15. Since the application under section 5 of the Act seeking condonation of delay in filing the appeal has been dismissed, therefore, this appeal being barred by time is also dismissed. KMZ/F-12/L Appeal dismissed.