2015 PLP 155 (CLD)

MUHAMMAD DAUD KHAN, J.

The instant application has been filed for re-admission of appeal dismissed by this Court vide order dated 30-3-2012.

2. The brief facts of the case are that the respondent-Bank instituted a suit for recovery of Rs.22,31,646/84 against the petitioner before the Judge Banking Court, Khyber Pakhtunkhwa, Peshawar, which was contested by the petitioner through filing leave to defend application. The learned trial Court, after hearing the parties, refused to grant leave to the petitioner and decreed the suit as prayed for vide judgment and decree dated 3-10-2006. The judgment and decree of the trial Court was challenged before this Court through FAB No.1/2006, filed on 15-11-2006, which was fixed for preliminary hearing before the Court on 3-4-2007 and subsequently on 5-6-2007, it was admitted for regular hearing subject to the condition of deposit of 1/4th of decretal amount within a period of thirty days and furnishing security bond for payment of the remaining decretal amount. Since then the case was constantly adjourned either on the request of the petitioner or due to his absence and ultimately, it was dismissed for non-prosecution vide order dated 30-3-2012, hence the instant application.

3. We have heard the arguments of learned counsel for the parties and perused the record with their assistance.

4. Perusal of the record reveals that the appeal was dismissed for non-prosecution on 30-3-2012, while the instant application has been filed on 19-5-2012. The application has been filed under Rule 19 of Order XLI, C.P.C., limitation for which is thirty days from the date of knowledge, where notice was not duly served on the appellant. In the instant case, it is manifest from the impugned order as well as from the report/endorsement of the Additional Registrar dated 28-3-2012 that the petitioner was duly served, but neither he nor his counsel bothered to appear before the Court on the date fixed. Initially the time barred application was filed without any application for condonation of delay, however, subsequently prayer for condonation of delay in appeal was made through an application, on the ground that he came to know about the dismissal of appeal on 24-4-2012. In support of his application, he could not produce a shred of evidence showing that he came to know about dismissal of appeal on the given date. As per report of process server, at the time of effecting service of the appellant/applicant, he was present at his house, but informed the former that due to serious illness, he is unable to come out, therefore, he was informed about the date fixed through his cell phone No.0300-5760097. From the above, it is abundantly manifest that the appellant/applicant was well aware of the date fixed but deliberately avoided his appearance before the Court. Mere assertion that the applicant came to know about dismissal of the suit on 24-4-2012, without any plausible explanation, could not be treated and considered as sufficient cause for condonation of delay. The indolent and non-cooperative attitude of the applicant towards the Court has cultivated a vested right in favour of the respondent bank, which should not be lightly dislocated. The limitation provided by the statute is not mere technicality, rather it is to be construed strictly in compliance with the maxim that delay defeats equity and each day delay has to be explained by the party concerned, while in case of failure, the applicant must face the consequences. Even if valuable rights of a person involved in a case would not be a sufficient reason and would not clothe the Court with the powers to use its discretion in arbitrary way by abridging the provisions of limitation. In the instant case, the applicant has either gone into deep slumber or was deliberately avoiding his appearance before the Courts to delay the disposal of appeal.

5. For the reasons mentioned above, the instant application being bereft of any merit and substance is hereby dismissed. AG/482/P Application dismissed.