2009 PLP 561 (CLC)

ZAFAR IQBAL CHAUDHRY, J.

Through this R.S.A., the appellant has assailed the order of the learned Additional District Judge, Lahore dated 25-9-2006, whereby an application under section 5 of the Limitation Act filed by the appellant was dismissed having no merit and consequently their appeal was dismissed being time-barred.

2. Briefly, the facts of the case are that Umar Khan, the predecessor of the respondents had filed a suit for damages on account of his illegal dismissal from the post of Chief Manager, National Bank of Pakistan in the year, 1958. The suit was contested by the appellant. The learned trial Court decreed the same, vide judgment and decree, dated 29-6-1998 for a sum of Rs.11,15,

941. The appellant feeling aggrieved filed R.F.A. No.337 of 1998 before this Court which was ordered to be returned for its presentation before the District Judge in view of the pecuniary jurisdiction, vide order, dated 21-9-1999. The appellant instead of receiving back the memorandum of appeal filed a petition before this Court for re-admission of the appeal which was dismissed on 23-10-2001 and the earlier order was upheld. The appellant received back the memorandum of appeal after more than three months on 29-1-2002 and filed the same before the learned District Judge on 1-2-2002.

3. I have heard the learned counsel for the parties and perused the documents attached with this file.

4. The learned Additional District Judge in the impugned order has discussed in detail the steps taken by the appellant in prosecution of the appeal before this Court and receiving the memorandum of appeal back for presentation before the learned District Judge. The learned Additional District Judge has observed that the application for condonation of delay was fled after the presentation of appeal before the learned District Judge, i.e. the appeal was filed on 1-2-2002 whereas the application for condonation of delay under section 5 of Limitation Act, 1908 was filed on 6-2-2002. The original application for condonation of delay was not signed by the appellant nor it was supported by the affidavit of the Attorney. However, an affidavit in support of appeal was submitted by one Ashraf Mahmood, Officer of National Bank of Pakistan and that there is nothing on record to show that the said officer had the valid authority to submit the same.

5. The learned Additional District Judge was of the view that no sufficient cause for condonation of delay in filing appeal was shown by the appellant, hence their application under section 5 of the Limitation Act, 1908 was dismissed having no merit. The learned counsel for the appellant has reiterated the facts which were urged before the learned Additional District Judge. He has not been able to advance any tangible justification for having filed appeal before this Court rather than filing it before the learned District Judge in terms of eve Illation of the suit. He has also not been able to advance any arguments in support of filing miscellaneous application for re-admission of the appeal when the law in respect of forum of appeal was absolutely clear in this case. It is also observed that there is strength in the arguments of the counsel for the respondents that the appeal before this Court was filed when limitation for filing appeal before the learned District Judge had already expired and to clover their lapse the appellant chose to file appeal before incompetent forum.

6. The conduct of the appellant and stress in prosecution of the appeal before this Court has not been bona fide. After first order of this Court for return of the appeal dated 21-9-1999, there was no valid reason for the appellant to have filed application for re-admission of appeal and having delayed in approaching the proper forum. It is observed that the appellant has been prosecuting the appeal before this Court without any probable cause and justified reasons. The time consumed in taking the memorandum of appeal and then to re-file it before the learned District Judge is more than 28 months. So there was no justification to condone the delay and I do not find any reason to disagree with the conclusions drawn by the learned District Judge in respect of the conduct of the appellant, who rightly dismissed the appeal being barred by time. Consequently, this R.S.A. having no merit is dismissed. However, the parties are left to bear their own costs. M.H.Q./N-12/L Appeal dismissed.