' MIAN HAMID FAROOQ, J.---Facts relevant for the decision of the present appeal are that the respondent-Bank, on 12-6-2004, filed the suit for recovery of Rs,9,24,263.48 (SME Bank v. Raza Ullah Tariq etc.), before the learned Judge Banking Court, against respondent No,3 and the appellant, on the basis of charge/security documents, including the personal guarantee, irrevocable general power of attorney and mortgage deed both dated 24-5-2003. The appellant, statedly resisted the said suit through the application for leave to defend the suit. Subsequently, the appellant, on 17-1- 2005, instituted the suit for declaration and cancellation of mortgage deed and general power of attorney, both dated 24-5-2003, before the learned Judge Banking Court, against the respondents.
The latter suit was contested by the bank through the application for leave to defend the suit. The learned Judge Banking Court, on 8-3-2005. Ordered for the personal appearance of the appellant, however, despite providing various opportunities for personal appearance of the appellant, he did not appear before the learned Judge Banking Court. Finally, on 20-6-2005, neither the appellant nor his learned counsel appeared and resultantly the learned Judge Banking Court after keeping the case in waiting thrice dismissed the suit, vide judgment and decree dated 20-6-2005. The appellant, instead of assailing the said decree before the appellate Court, preferred the application for restoration of the suit, which was dismissed by the learned Judge Banking Court, vide impugned order dated 14-7-2005, hence the present appeal.
2. Learned counsel for the appellant has contended that under the circumstances the plaint could not have been rejected, the learned Banking Court was obliged to decide respondent's leave application notwithstanding the f jet that none represented the appellant and at the maximum, respondent's leave application could have been allowed He has relied upon M. Shahid Saigol v. Al- Towfeek Investment Bank Ltd. Through Branch Manager 2005 CLD 920. He has added that the impugned orders are void and therefore, liable to be set aside. Conversely, the learned counsel for the respondent has submitted that the appeal, as against the judgment and decree dated 20-6- 2005, is barred by time, therefore, liable to be dismissed. He has added that the appeal is not maintainable against order dated 14-7-2005.
3. We have heard the learned counsel and examined the summoned record. Undoubtedly, the present appeal proceeds against judgment and decree dated 20-6-2005 (whereby appellant's suit was dismissed) and order dated 14-7-2005 (through which appellant's application for restoration of the suit was dismissed). As regards decree dated 20-6-2005, the appeal against the said decree is admittedly barred by time and therefore, the appellant has filed the application (C.M. No,2-C of 2005) for condonation of delay on the ground that the impugned order is a void order. The learned counsel for the appellant, while firstly arguing this application has stated that since the impugned judgment is a void order, and as no limitation runs against a void order, therefore, the appeal against the decree is within time. Contention raised by the learned counsel has little substance.
4. In the above perspective, to our mind, the prime question, which has arisen for determination by this Court is as to whether section 5 of the Limitation Act is 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 are 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 a special law and section 22(1) of the Ordinance, 2001 prescribes a period of 30 days for filing the first appeal, before this Court against the judgment and decree passed by the learned Banking Court.
5. From the above, it is thus clear that the special law has provided different period 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, as per law laid down in the cases of 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. Being guided by the aforesaid law laid down, 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 pleas raised by the appellant in his application are devoid of merits in view of the aforenoted law declared by the Honourable Supreme Court of Pakistan, which as per Article 189 of the Islamic Republic of Pakistan is binding upon all the Courts.
6. With the dismissal of the said application, the present appeal deserves to be dismissed on the short ground of limitation.
7. Now coming to order dated 14-7-2005, whereby appellant's restoration application was dismissed. We are of the view that the appeal against the said order is competent under section 22(1) of the Ordinance, as this is a final order. Said provision of law envisages that any person aggrieved by judgment, decree, sentence or final order passed by the Banking Court may file an appeal to this Court. Objection of the learned counsel of the respondent is misconceived and it is held that the appeal is maintainable as against order dated 14-7-2005.
8. Despite that the appellant has no case on merits. It is evident from the record, as noted in the impugned order that the learned Judge Banking Court directed the appellant to appear in person and he was granted four opportunities, but he failed to abide by the order of the Court. It may be noted that out of those four opportunities three adjournments were granted subject to payment of costs. Even that action could not deter the appellant and he remained consistently absent. On the fateful day i,e, on 20-6-2005, neither the appellant nor his learned counsel attended the Court proceedings, both were absent and the learned Banking Court dismissed the suit. Order X, Rule 4(1), C.P.C. Provides that where a pleader of any party is unable to answer any material question, then Court may postpone the hearing of the suit and direct that such a party shall appear in person.
Order X, rule 4(2), C.P.C. Envisages that if such party fails to appear without lawful excuse, the Court may pronounce judgment against him. In the case in hand, as noted above, the appellant despite granting four opportunities, did not enter appearance and therefore, to our mind the learned Judge Banking Court was justified in dismissing appellant's suit, inter alia on the ground that he did not comply with the order of the Court and failed to appear in person. It has been held in Nazir Ahmad v. District Judge, Leiah and 9 others PLD 1986 Lahore 137 that a Court would have discretion to pronounce or not to pronounce judgment against a party failing to appear in person, without lawful excuse. In this case, the learned Judge Banking Court, in exercise of its discretion, after finding that the appellant failed to abide by the direction of the Court, pronounced the judgment against the appellant. If any further judgment is required, case reported as Mst. Sardar Begum v.
Darwesh Muhammad PLD 1997 Lahore 730 can be referred. As regards the case of M. Shahid Saigol
(ibid) relied upon by the learned counsel, suffice it to say that the same is not applicable in the present case as the said judgment was rendered under different fact and circumstances of the case, inasmuch as in that case no order for the personal appearance of the appellant was passed and on the date of passing of the impugned order, the appellant did not absent from the proceedings.
9. There is another aspect of the case. On 1-6-O05, the case was adjourned to 20-6-2005 for appearance of the appellant in the presence of the learned counsel for the parties, but on the subsequent date i,e, 20-6-2005 neither the appellant nor his learned counsel appeared before the Court. The learned Judge Banking Court kept the case in waiting thrice and then besides on the ground of non-appearance of the appellant, dismissed the suit for non-prosecution as well. In the above perspective, we find no infirmity in the impugned order dated 14-7-2005, which is legal and justified
10. For the foregoing reasons, the present appeal is devoid of merits and barred by time, hence stands dismissed with no II orders as to costs.