' Applicant/appellant, through the application in hand, seeks re-admission of his appeal (R.F.A.
No,419 of 2001), which was dismissed for non-prosecution, on 21-6-2004, in the presence of the learned counsel for the respondent-Bank, who has resisted the application.
2. Former, while referring to para.1 of the application, submits that, on 21-6-2004, he was busy before other Benches of this Court and in the Honourable Supreme Court of Pakistan, therefore, he could not appear in the appeal and that constitutes "sufficient cause" for the re-admission of the appeal. Contrarily, the learned counsel for the respondent has stated that it is not proved on record as to whether the learned counsel was busy before other Benches of this Court or before the Honourable Supreme Court of Pakistan, as no prima facie proof has been placed on record.
3. We have heard the learned counsel and examined the available record. The only ground urged in para. 1 of the application, as canvassed by the learned counsel, is that "but due to the engagement of the counsel of the petitioner in other Benches of this Honourable Court and in the august Supreme Court at call of the appeal in question". It may be noted that the applicant did not file copies of the cause lists in order to demonstrate that the learned counsel was busy before other Benches of this Court or before august Supreme Court, as alleged in the application. It has vaguely and casually been stated, as reproduced above, that the learned counsel was busy before this Court and in the august Supreme Court of Pakistan. The applicant has not specifically pleaded and failed to narrate as to before which Courts, the learned counsel was busy and at what point of time. The learned counsel of the applicant even did not furnish his affidavit and felt contended only by filing the affidavit of the applicant in routine. The affidavit of the applicant is of no avail to him, as he could not depose about the alleged engagements of his learned counsel before "other Benches of this Court and before the august Supreme Court" specially in view of the narrative in para.2 of the application, which states "that the petitioner/appellant could not be informed by the counsel being belonging to outside Lahore and for this reason the case remained unattended even by the petitioner". If said para. Of the application be taken as true, then applicant's affidavit appears to be false, as he could not depose about the alleged pre-occupation of the learned counsel before any of the Courts as he was not in the knowledge of fixation of the appeal. The applicant, along with the application, has filed a photocopy of single page of a diary statedly belonging to the learned counsel. It is, however, not discernible from that page that the said diary, in fact, belongs to the learned counsel. Even otherwise, in the absence of daily cause list and affidavit of the learned counsel, the said photocopy cannot be relied upon, more importantly, when the valuable right has accrued favouring the other party. To our mind, the applicant has comprehensively failed to even prima facie prove as to whether the learned counsel was busy before other Benches of this Court or not and at what point of time and all these details are comprehensively lacking in the application and the affidavit.
4. It is settled law that mere fact that a litigant having engaged a counsel to appear on his behalf does not absolve him of all the responsibilities and the litigant is also under duty to see that his appeal is properly and diligently prosecuted. Reliance can be placed on Rafiq Ahmad Khawaja v.
Abdul Haleem 1982 SCMR 1229. The applicant cannot be absolved of his duties by simply stating that he was not informed by his learned counsel about the fixation of the case. In the above perspective, the applicant has failed to establish that there were "sufficient reasons" for his nonappearance as well as for the absence of his learned counsel, therefore, we see no "sufficient cause" within the parameters of law warranting the re-admission of the appeal.
5. There is another aspect of the case. The conduct of the applicant does not justify re-admission of the appeal. We have examined the order sheet of the appeal and find that the learned counsel only appeared once-in the appeal and that too at the time of preliminary hearing of the appeal, on which date, the appeal was admitted to regular hearing. Thereafter neither the learned counsel nor the applicant attended to the appeal before the Division Bench of this Court and ultimately on 21- 6-2004, the appeal was dismissed for non-prosecution. Throughout the pendency of the appeal, the learned counsel appeared at the time of the admission of the appeal and thereafter both, the applicant as well as his learned counsel, absented from the proceedings, which resulted in the dismissal of the appeal. Additionally, even before the learned Banking Court, the applicant, who was defendant No,5 in the suit, did not appear and failed to produce his evidence and therefore, his evidence was closed. Over all conduct of the applicant does not entitle him for the grant of discretionary relief.
6. We have noticed that the appeal, for the re-admission of which, the instant application was filed, was itself barred by time, as the same was instituted beyond the period of limitation and along with the appeal, an application under section 5 of the Limitation Act was also filed. This Court, while dismissing the appeal for non-prosecution on 21-6-2004 has also taken note of the fact, that the appeal was barred by time. It appears appropriate to reproduce order dated 21-6-2004, which reads as follows:-- "The learned counsel of the respondents submits that appeal of the appellant is highly time-barred and section 5 of the Limitation Act is not applicable as the decree has been passed by the Banking Court under Special Law.
(2) Be that as it may, despite repeated calls, nobody entered appearance on behalf of the appellant, therefore, the appeal is dismissed for non-prosecution."
7. In the present set of circumstances, section 5 of the Limitation is not applicable. 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, before this Court, while the present case is governed by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which is a special law and section 21(1) of the Act, 1997 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. 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; 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, which has been filed under section 5 of the Limitation Act, is misconceived, incompetent and not maintainable, therefore, the appeal is barred by time. In view whereof, in case the appeal is restored, it would be of no consequence, as the same would ultimately be dismissed having been filed beyond the period prescribed under the law.
8. Seeing from any angle, the applicant has not been able to make out a case warranting the re- admission of the appeal. We, after attending to all the circumstances of the case, as noted above, are not persuaded to exercise our discretion in favour of the applicant.
9. Upshot of they above, discussion is that the present application is devoid of merits, hence stands dismissed.