2002 PLP 1772 (CLD)

‑‑‑‑Ss. 3 & 5‑‑‑Void order or order without jurisdiction‑‑ Connotation ‑‑‑ Distinction‑‑‑ Condonation of gross negligence‑‑‑Order being void or without jurisdiction‑‑‑Scope and distinctive features elaborated. Void order or an order without jurisdiction is only a type of an illegal order passed by a Court, and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. Expressions void order and orders without jurisdiction are over‑worked expressions, which are no doubt relevant in some contexts, but it would be better to use these expressions in the narrow and original sense of lack of competence of the Court or Tribunal "to enter on the enquiry in questions". Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Anisminic Ltd. v. Foreign Compensation Commission and others (1969) 2 AC 147 fol. (d) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑-- ‑‑‑‑S.9‑‑‑Limitation Act (IX of 1908), Ss.5 & 29‑‑‑Appeal‑‑ Condonation of delay‑‑‑Sufficient cause‑‑‑Judgment and decree were passed on 21‑12‑1996‑‑‑Application for obtaining certified copies was made on 22‑12‑1996, which were prepared and delivered to appellant on 9‑1‑1996‑‑ Appeal was filed on 19‑2‑1996 without application under S.5 of Limitation Act, 1908 for condonation of delay‑‑‑Office on 26‑2‑1996 returned the appeal after raising objection in regard to limitation‑‑‑Appeal was re filed on 4‑3‑1996 alongwith application under S.5 of Limitation Act‑ for condonation of delay‑‑‑Validity‑‑‑Present was the clear case of negligence in filing the appeal in time‑‑‑Reasons given in application did not constitute sufficient cause, which would have justified condonation of delay, had the provisions of S.5 of Limitation Act, 1908 been applicable to present appeal‑‑‑High Court dismissed the appeal being barred by time. Shaukat Umar Pirzada for Appellant. Azmat Saeed for Respondent No.2. Date of hearing: 17th July, 2002. This appeal impugns the judgment and decree dated 21‑12‑1994, passed by the Banking Tribunal, Lahore, decreeing the suit of the appellant. The certified copy of the judgment and decree was applied on 22‑12‑1994. The same was prepared and delivered to the appellant on 9‑1‑1996. The limitation period of thirty (30) days, as provided in section 9 of the Banking Tribunals Ordinance (No. LVIII) 1984, expired on 8‑2‑1996. The time‑barred appeal was initially filed on 19‑2‑1996, without any application under section 5 of the Limitation Act, for condonation of delay. On 26‑2‑1996, the office raised an objection in regard to the limitation and returned the appeal. The appeal was re‑filed on 4‑3‑1996, this time accompanied with an application under section 5 of the Limitation Act, 1908, for condonation of delay. The appeal is admittedly barred by time. The period of filing of appeals has been specified in section 9 of the Banking Tribunals Ordinance : (No. LVIII), 1984 and, therefore, the provisions of section 29 of the Limitation Act are applicable. As such, the delay in filing of the appeal cannot be condoned under section 5 of the Limitation Act or any other legal provision. This view has been taken by this Court while interpreting the similar provision of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, in Messrs Munir & Co., Kamalia and 2 others v. Allied Bank of Pakistan Limited through 2 Attorneys (2002 CLD 657) and Majeed Akbar Farooqi v. Bank of Punjab through Manager (Attorney) (2002 CLD 778).

2. The argument of the learned counsel for the appellant that the impugned judgment and decree is void on the ground that the order passed by this Court in Writ Petition No. 3890 of 1992 in‑ regard to the validity of the personal guarantees furnished by the respondent No.2 was not properly followed by the Banking Tribunal and, therefore, is not subject to any period of limitation, has no force. We have examined the judgment and decree passed by the Banking Tribunal. The same cannot be held to be void merely because the Banking Tribunal held that the personal guarantees furnished by respondents 2 and 4 having not been attested in accordance with Law. In Messrs Conforce Ltd. v. Syed Ali Shah etc. (PLD 1977 , SC 599), it was held by the Hon'ble Supreme Court that "In view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some context but as suggested by Lora Reid in Anisminic Ltd v. Foreign Compensation Commission and others (1969) 2 AC 147 it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal "to enter on the enquiry in question".

3. We have also gone through the grounds set out in the application for condonation of delay. We are of the view that it is clear case of negligence in filing the appeal in time and the reasons given in the application do not constitute sufficient cause which would have justified condonation of delay, had the provision of section 5 of the Limitation Act been applicable to the present appeal.

4. For the foregoing reasons, this appeal being barred by time is dismissed. S.A.K./A‑304/L Appeal dismissed