Appellants, through the filing of the present first appeal, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, have called in question judgment and decree dated 3-12-2001, whereby the learned Banking Court, after dismissing appellants' application for leave to defend the suit, proceeded to pass a decree for the recovery of Rs.7,75,908 together with cost and rental charges against the appellants.
2. Instant first appeal is admittedly barred by time, as such the appellants, on 25-10-2004, filed the application under section 5 of the Limitation Act (C.M. No.3-C/2004), seeking condonation of delay.
The only ground urged in the said application "that after the filing of said appeal in time, the petitioner was not informed of fate by any quarters lastly when on 23-10-2004, the appellant contacted it was told that the case is in objection. Hence this petition for condonation of delay, the delay is not intentional or deliberate but due to the fact that the case lying in return".
3. Firstly, the aforenoted application for the condonation of delay is adverted to. The learned counsel for the appellants, in support of the said application, has submitted that the appellants originally filed the appeal, on 26-1-2002, which was within time and as the office did not inform the appellants about the objection raised in the appeal, therefore, this is "sufficient cause" for the condonation of delay in filing the appeal. Conversely the learned counsel for the respondent has submitted that the impugned decree was passed on 3-12-2001; initially the appeal was filed on 26- 1-2002; the same was returned and refiled on 29-1-2002, the appeal was again returned and it was resubmitted on 30-10-2004, therefore, the appeal was filed beyond the period of limitation and it is grossly barred by time. She has relied upon (1993 SCMR 465) (no judgment) and Naheed Ahmad v.
Asif Riaz and 3 others (PLD 1996 Lahore 702). She has added that the appeal was filed after 2-1/2 years, therefore, there is no sufficient ground for the condonation of delay.
4. When the learned counsel of the appellants was asked to show as to how section 5 of the Limitation Act is applicable in the present case, the learned counsel replied that as the appellants were not negligent, therefore, the delay may be condoned.
5. In the above perspective, to our minds, the prime question, which has arisen for determination by this Court is as to whether section 5 of the Limitation Act is A applicable in the present case. Section 29 of the Limitation Act provides that where in a special or local law different periods of limitation have been prescribed, the provisions of section 5 of the Limitation Act is not applicable. It may be noted here that under the ordinary law, a period of 90 days has been prescribed for filing the first appeal, under Article 156 of the Limitation Act, before this Court, while the present case is governed by the provisions of Financial Institutions (Recovery of Finances)
Ordinance, 2001, which is special law and section 22(1) of the Ordinance, 2001 prescribed a period of 30 days for filing the first appeal, before this Court, against the judgment and decree passed by the learned Banking Court.
6. From the above, it is thus clear that the special law has provided different periods of limitation, for filing the first appeal in this Court, than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstances. In the above backdrop, we are of the firm view that the provisions of section 5 of the Limitation Act are not applicable in view of the provisions of section 29 of the Limitation Act, as per law laid down in the cases of Allah Ditta v. Farooq Ahmad and 3 others (PLD 1979 Lahore 917) and Bashir Ahmad and others v. Messrs Habib Bank Ltd. (1990 CLC 1105) and by the Hon'ble Supreme Court of Pakistan in the reported cases of All Muhammad and another v. Fazal Hussain and others (1983 SCM R 1239) and Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286). Being guided by the aforesaid law declared, the application in hand, which has been filed under section 5 of the Limitation Act, is misconceived, incompetent and not maintainable. Needless to add that the contentions raised by the learned counsel in this regard are devoid of merits in view of the aforenoted law declared by the Hon'ble Supreme Court of Pakistan, which, as per Article 189 of the Constitution of the Islamic Republic of Pakistan is binding upon all the Courts.
7. Even if it be taken that section 5 of the Limitation Act is applicable in the present case, still there is 'no "sufficient cause" for the condonation of delay. The impugned decree was passed on 3-2-2001; the appellants filed the appeal before this Court on 26-1-2002; office raised certain objections on the same day and the appellants refiled the appeal after removing some of the objections, on 29- 1-2002. On the same day, the office raised the objection that Objection No.18 is still to be removed.
However, the appellants re-filed the appeal after removing the said objection on 30-10-2004. It is thus evident that the appellants re-filed the appeal after the lapse of 2 years and 9 months. The objection sheet shows that the office raised the objection for the second time on 29-1-2002, but the appellants did not inquire about the fate of the case for approximately 2-1/2 years. Even if the office did not inform the appellants about the objection raised in the case, even then the appellants were grossly negligent as they waited for more than 2-1/2 years awaiting the intimation from the office. The learned counsel for the appellants could not show from the available record or otherwise that the case was returned to the appellants on 23-10-2004, as mentioned in their application under section 5 of the Limitation Act.
No sufficient cause for the condonation of delay has been made out.
In the above background the application filed by the appellants under section 5 of the Limitation Act is incompetent, not maintainable and devoid of merits as well, thus stands dismissed on both the counts.
8. With the dismissal of the aforenoted application, the appeal is barred by time, thus we are constrained to hold that the appeal cannot proceed further having been filed beyond the period of limitation prescribed under the relevant law, thus the same stands dismissed leaving the parties to bear their own costs.