MIAN HAMID FAROOQ, J.---Present appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against the judgment and decree, dated 5-6-2004, whereby the learned Judge Banking Court, in exercise of powers under Order VII, rule 11, C.P.C., rejected the plaint in appellants' suit for declaration.
2. The appellants on 19-7-2003, instituted the suit for declaration against the respondents, before the learned Judge Banking Court, inter alia, pleading that the appellants did not avail any loan from the respondents, they have no nexus with Account No.282372 and the said loan is a result of fraud and forgery committed by respondent No.2. The respondents, when served, filed the application seeking leave to defend the suit, which was accepted on 28-1-2004. Issues were framed, on 13-4-2004, and the case was put off for recording appellants' evidence. On 4-6-2004, the learned counsel for the respondents, while referring to para.3 of the plaint, apprised the Court that the appellants have admitted the availing of the loan facility to the tune of Rs.1,30,000 and thereupon the case was adjourned to 5-6-2004. On the said date, none appeared on behalf of the appellants and the learned Judge Banking Court, after finding that the plaint does not disclose cause of action, proceeded to reject the plaint in appellants' suit, in exercise of powers under Order VII, rule 11, C.P.C., vide impugned judgment and decree, dated 5-6-2004, hence the present appeal.
3. Learned counsel states that the impugned judgment is not sustainable in law and the plaint in appellants' suit could not be rejected. He has further contended that the bank did not file any application under Order VII, rule 11, C.P.C. For rejection of the plaint.
4. The appellants have produced all the documents, which are sufficient to decide the appeal, therefore, we are not inclined to summon the record.
5. We have heard the learned counsel and examined the available record. Even according to the own showings of the appellants, their appeal is barred by time and thus they have filed the application under section 5 of the Limitation Act (C.M. No.1-C of 2005) for condonation of delay.
Firstly dealing with this application. To our mind, the prime question, which has arisen for determination by this Court in the appeal, 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 provision 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 a special law and section 22(1) of the Ordinance, 2001 prescribes a period of 30 days for filing first appeal, before this Court, against the judgment, decree and final order passed by the learned Banking Court.
6. From the above, it is thus clear that the special law has provided different period of limitation for filing 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 Hon'ble Supreme Court of Pakistan in the reported cases of All 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 appellants in their application 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 Islamic Republic of Pakistan is binding upon all the Courts.
7. Even if it be taken that the appeal is within time, the appellants have got no case on merits, either. The appellants filed the suit for declaration (certified copy whereof is placed at pages 6 to 8 of the file), to the effect that the plaintiffs have no nexus with the Account No.282372 and they have not obtained any loan. It appears appropriate to reproduce the title of the suit, which reads as follows:- {{URDU TEXT}} Para.3 of the plaint reads as follows:- {{URDU TEXT}} Following relief was sought by the appellants, {{URDU TEXT}} It is evident from the bare reading of the contents of the plaint that although it has been stated in the title and prayer of the suit that the appellants did not avail any loan in Account No.282372 yet reproduction of para.3 of the plaint shows that the appellants have admitted that-in the year, 1999, they have availed the loan facility under Account No. 282372. It has also been admitted in the said para. Of the plaint that no instalment was paid in the said account and that new loan cannot be granted unless the old loan is liquidated. Thus the appellants have admitted that in the same loan account (282372) they have availed the facility.
The learned Judge Banking Court has rightly held that the plaint does not. Disclose any cause of action, as the appellants have admitted the availing of the loan facility to the tune of Rs.1,30,000 against the same loan account.
8. As regards the contention of the learned counsel that the plaint could not have been rejected by the learned Banking Court. Suffice it to say that the learned Judge Banking Court, after the grant of leave, has the powers to reject the plaint C under Order VII, rule, 11, C.P.C. It appears appropriate to reproduce a portion from the judgment reported as Messrs Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through Manager (2003 CLD 245):-- "Undoubtedly after the grant of leave to defend and treating the leave application as written statement, the respondents are within their right to have filed an application under Order VII, rule 11, C.P.C. And if the Court reaches the conclusion that the case falls under any of the clauses of Order VII, rule 11, C.P.C., of course, plaint could have been rejected, but in no way before the grant of leave to defend the suit."
9. Now coming to the other contention of the learned counsel regarding non-filing of the application under Order VII, rule, 11, C.P.C. By the bank. Bare perusal of the said provision of law amply manifests that the plaint could be rejected in certain eventualities, rather it is the duty of the Court to examine the plaint to determine as to whether the plaint should be rejected or not. It has nowhere been envisaged, under the said provision of law, that a defendant must file an application for the rejection of the plaint and the Court, before whom the lis is pending, is divested of the powers from rejecting the plaint of its own accord. The contention of the learned counsel is devoid of any force. In view of the above, we have examined the- impugned judgment and find that the same is in consonance with the law on the subject and thus we are not persuaded to upset the judgment and decree, which are hereby maintained.
10. In view of the above, the present appeal is barred by time and devoid of merits as well, thus stands dismissed on both the counts.