Appellant/defendant, through the filing of this 'first appeal, under Section 21 of Financial Institution (Recovery of Finances) Ordinance, 2001, has called in question judgment and decree dated 31.3.2003, whereby the learned Banking Court, after rejecting appellant's application for leave to defend the suit, proceeded to pass the decree for the recovery of Rs. 3,31,485/- alongwith costs of funds arid costs of the suit, against the appellant.
2. Leamed counsel for the appellant has contended that the impugned decree was rightly passed-, however, the same could not be executed, as the appellant has been reinstated in service and, thus, the original contract of loan has revived and the decree has become redundant. Conversely, the learned counsel appearing on behalf of the respondent requests for the adjournment of the case on the plea that the principal learned counsel is not available on account of demise in his family.
3. Instant first appeal is admittedly barred by time, as such, the appellant has filed the application, under Section 5 of the Limitation Act (C.M. No. 1/2003), seeking condonation of delay. The only ground urged in the. Said application is that "in. The interest of justice and equity, the delay, if any, for re-filing the RFA may be condoned".
4. Firstly, the afore noted application for condonation of delay is adverted to. Learned counsel for the appellant, in support of the said application, has submitted that originally the appeal was filed without the payment of Court-fee and-on an objection, raised by the office when the appellant paid the Court-fee and re-filed the appeal, in the meantime, the appeal became time-barred. He has added that this is "sufficient cause" for the condonation of delay in filing the appeal.
5. When the learned counsel of the appellant 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 appellant was not negligent, therefore, the delay may be condoned.
6. In the above perspective; .To our minds, tt^p prim 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 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 Institution (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.
7. 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, In the above back drop, 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 Vs. Faruq Ahmad and 3 others (PLD 1979 Lah. 917) and Bashir Ahmad and others Vs. Messrs Habib Bank Ltd. (1990 CLC 1105) and by the Hon'ble Supreme Court of Pakistan in the reported cases of Ali Muhammad and another Vs, Fazal Hussain and others (1983 SCM R 1239) and Allah Dino and another Vs. 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 afore-noted 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.
In the above back ground the application filed by the appellants under Section 5 of the-'Limitation Act is incompetent and not maintainable.
8. Even on merits, the appellant has got no case. On a query raised by this Court, the learned counsel for the appellant stated that although Labour Court has ordered for the reinstatement of the appellant in bank's service, yet the respondent-bank has filed the appeal, which is pending.
Thus, even according to the own showings of the appellant, the appeal, against the order passed by the learned Labour Court, is pending before the higher forum, therefore, unless it is finally decided in favour of the appellant, it can neither be urged nor held that the appellant has finally been reinstated, In case the final judgment would be in favour of the appellant, he can, of course, agitate the matter before the Bank or Banking Court. At. This stage, the appellant is precluded from pleading that the impugned decree has become redundant.
9. In the above perspective, we are constrained to hold that the appeal cannot proceed further having been filed beyond the period of limitation prescribed under the relevant law and being devoid of merits, thus, the appeal stands dismissed on both the said counts, leaving the parties to bear their own costs.