MIAN HAMID FAROOQ, J.---This single judgment shall decide the present appeal (R.F.A. No.455 of 2004) and connected appeal (R.F.A. No.454 of 2004), as identical questions of law and facts are involved in both the appeals and they are between the same parties.
2. Appellants, through the filing of the present two appeals, under section 22 of the Financial.
Institution (Recovery of Finances) Ordinance, 2001, have called in question judgments and decrees both dated 7-2-2002, whereby the learned Banking Court, after dismissing the applications for leave to defend the suit, proceeded to pass separate decrees for the recovery of Rs.14,64,706 and Rs.13,01,543 with costs and cost of funds, against the predecessor-in-interest of the appellants, namely Muhammad Yousaf Bhatti, respondent No.2 and one Abdul Bari.
3. Despite various calls made, none has entered appearance to prosecute these appeals, till the fag end of the Court's working hours, thus, the appeals are liable to be dismissed for non- prosecution.
4. Additionally, we find that the present appeals are grossly barred by time. Examination of the available record manifests that the appellants filed the present appeals on 9-10-2004, challenging the judgments and decrees dated 7-2-2002 i.e. after the lapse of more than 2-1/2 years. When the appeals were presented, the office raised the objection that the appeals are barred by time and thereupon the appeals were placed before this Court as objection cases at the request of the learned counsel for the appellants. This Court, vide order dated 1-11-2004, directed the office to entertain the appeals however, observing that the question of limitation shall be decided by the Court itself. It appears appropriate to reproduce order dated 1-11-2004, which reads as follows:-- "By relying upon the case reported as Province of Punjab through Secretary, Health Department, Punjab, Lahore v. Dr. Muhammad Afzal Shah Hashmi 1991 MLD 806, it is argued that the appellants have applied for the copy of the judgment dated 7-2- 2002 on 14-2-2002, which was within time; no date for supply of the copy was given and despite the appellant's approach, the copy was not supplied, which has been finally provided on 27-9- 2004, thus the appeal is within time and resultantly, no application for condonation of delay is required under the law.
(2) Heard. The question about the appeal being within time, cannot be decided without holding the proper inquiry, as to whether for the last 2-1/2 years, the application of the appellants for obtaining the copy of the judgment and decree remained pending with the Copying Agency. Therefore, let the office fix the appeal before the Court and the question of limitation shall be decided by the Court itself."
5. Perusal of back side of the decree sheets, appended along with the memorandum of appeals, shows that one Zafar Iqbal through Zia-ud-Din Bhatti, Advocate, on 14-2-2002, applied for obtaining the certified copies, which were prepared on 21-2-2002, while the same were delivered on 27-9-2004. The case of the appellants is that as the copies were actually delivered on 27-9- 2004, therefore, the appellants are not to suffer due to the delay caused by the Copying Agency in preparation of the certified copies and therefore, the period between 14-2-2002 up to 27-9-2004 Merits to be excluded. It appears appropriate to reproduce paras.14, 15, 16 and 17 of the memorandum of appeals, which contain the view point of the appellants qua the exclusion of said period:-- "14. That the copies were actually delivered on 27-9-2004 but the date of preparation was wrongly mentioned as 21-2-2002 on the copies.
15. That the appellants have always remained diligent there has been no negligence on their part in obtaining the certified copies.
16. That the appellants should not be made t suffer due to the delay caused by the copying agency in preparation of the certified copies.
17. That in the circumstances the period between 14-2-2002 up to 27-9-2004 merits to be excluded in computation of the period of limitation."
6. Admitted facts on record are that the impugned judgments and decrees were passed on 7-2- 2002, copies whereof were applied on 14-2-2002, which were prepared on 21-2-2002 and the same were delivered to the appellants, on 27-9-2004. The case of the appellants, as noted above, is that as the certified copies were delivered to the appellants on 27-9-2004, therefore, the limitation period for filing the appeals, before this Court, will start from the said date and reliance was placed on Province of Punjab through Secretary, Health Department, Punjab, Lahore v. Dr. Muhammad Afzal Shah Hashmi 1991 MLD 806 to contend that the appeals are within time. It has been held in this case that when the copying agency did not give any actual date for delivery of certified copies of judgment and decree, the appellant was entitled to the exclusion of time between the date of application and date of delivery of copies of the judgment and decree, thus the appeal in that case was treated within time. II may be noted here that the,appellants have not placed on record any material to show that the copying agency, in fact, did not give any actual date for delivery of the copies, inasmuch as the receipt, issued by the copying agency at the time of receiving of "Sawal Form" has not been appended, which is the only prima facie evidence to indicate as to whether any actual date was given or not.
7. The view taken by the Honourable Supreme Court of Pakistan in the case reported as Muhammad Nawaz v. Abdus Salam and another PLD 1997 SC 563 is that the limitation period for filing of appeal would not be computed from the date of delivery/collection of the certified copies.
It would be appropriate to reproduce the relevant portion of the said judgment, which really clinches the matter and is complete answer to the contentions raised by the learned counsel, as recorded by this Court, in order dated 1-11-2004 and reproduced above. The said portion reads as under:-- "While in the instant case petitioner took almost four months in collecting the copies and no reasonable explanation has been given for this inordinate delay. Petitioner appears to have acted with utter negligence. Similarly in the second case, too, the copies of the judgment and decree were made ready on 27th of June, 1968 and were delivered on 12th of July, 1968 i.e. within 15 days. As observed above, petitioner in the present case acted negligently and therefore, we are not persuaded, in the peculiar facts of the case, to allow this request for condonation of delay. His application for condonation of delay is accordingly dismissed with the result that the petition for leave to appeal stands dismissed as time-barred."
8. In the above perspective, without entering into controversy, as to why the appellants were not delivered the certified copies of the judgments and decrees for 2-1/2 years, and being guided by the law declared, we are of the view that the appellants are not entitled to the exclusion of the period between 14-2-2002 to 27-9-2004 and thus the appeals in hand are grossly barred by time.
9. Even otherwise, in the present case, application under section 5 of the Limitation Act for the condonation of delay in filing the appeal though not filed by the appellant is incompetent and not maintainable in view of the judgment reported as Allah Ditta v. Farooq Ahmad and 3 others PLD 1979 Lahore 917; Bashir Ahmad and others v. Messrs Habib Bank Ltd. 1990 CLC 1105; Messrs Conoco Industries (Pvt.) Ltd. and 3 others v. United Bank Limited, Lahore and another 2004 CLD 472 and Sheikh Muhammad Kashif v. Askari Leasing Limited through Manager/Chief Executive of Branch/Recovery Officer 2004 CLD 1645 and by the Honourable Supreme Court of Pakistan in the reported cases of Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286.
10. In the above back drop, both the appeals are dismissed on the counts that none has come forward to prosecute them and the same are grossly barred by time. No order as to costs.