' ALI SAIN DINO METLO, J.---A money suit, bearing No,293 of 2001, re Habib Bank Limited v.
Muhammad Anees Hameed, filed on 18-8-2001, was decreed for Rs,387,768.32 with future mark-up by the Banking Court No,II, Karachi on 3-6-2002, by refusing the respondent leave to defend it.
2. In the Execution Application bearing No,140 of 2002, filed on 25-11-2002, the respondent (judgment-debtor) filed an application for the disposal of execution application in terms of compromise offered by him under which he paid Rs,60,000 and deposited seven cheques, six of Rs,50,000 each and one of Rs,27,770, for the balance amount.
3. The decree-holder accepted the amount as well as the cheques without raising any objection.
4. After sometime i,e, on 16-8-2006, the decree-holder requested the Court to recover a further amount of Rs,163,065 as future mark-up from the judgment-debtor. The Court, by the impugned order dated 28-9-2006, refused to do so holding that the decree-holder, after accepting the decretal amount in terms of the compromise, was not entitled to recover the future mark-up.
5. The appeal, which was filed after 11 days of the expiry of period of limitation, is sought to be admitted for hearing by condoning delay on the ground that the decree-holder could not file application for certified copy of the impugned order before 12-10-2006, as the file was in the chamber of the Presiding Officer for the purpose of writing the order.
6. In order to admit an appeal for hearing filed after the expiry of period of limitation prescribed therefor, two questions are very pertinent for consideration. First, whether the Court has power to do so? And second, whether the appellant had sufficient cause for not preferring the appeal within the prescribed period?
7. As regards the power of the Court, section 5 of the Limitation Act, 1908, provides that an appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which the section May be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
8. Learned counsel for the appellant argued that from expression 'after the period of limitation prescribed therefor by the First Schedule' as used in section 3 ibid words 'by the First Schedule' have been deliberately omitted in section 5 ibid making the legislative intent clear that section 5 ibid was meant to be applied to all the cases irrespective whether the period of limitation was prescribed by the Limitation Act or by any other law.
9. In a very large number of cases, period of limitation for filing appeal is prescribed by special laws such as Anti-Terrorism Act, 1997, Banking Companies (Recovery of Loan) Ordinance, 2001, Sindh Rented Premises Ordinance, 1970 etc. If a person has sufficient cause for not preferring appeal within the prescribed period of limitation, it will not make any difference whether the period is prescribed by the Limitation Act or by any other law. Sufficiency or insufficiency of cause depends upon nature of the cause and not upon the law prescribing the period of limitation. It will be anomalous to say that the legislature intended to admit appeals filed after the expiry of period of limitation prescribed by the Limitation Act and not to admit appeals for which the period of limitation was prescribed by any other law.
10. Right of appeal is a very important right originating from the Injunctions of Islam. In the cases of Federation of Pakistan v, Public At Large PLD 1988 SC 202 and Pakistan through Secretary Ministry of Defence v. The General Public PLD 1989 SC 6 it was held that except in petty cases right of at least one appeal was indispensable and any law denying such right was repugnant to the Injunction of Islam and the Constitution. Such an important right cannot be denied on any technical ground and while interpreting a law the principle of 'advancement of remedy and suppression of mischief will have to be kept in mind.
11. In the case of Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88, the Honourable Supreme Court, while interpreting section 29(2) of the Limitation Act, was pleased to hold that section 5 ibid would not apply in case the period of limitation for filing a suit, appeal or application prescribed by any special or local law is different from the one prescribed by the Limitation Act.
' Section 29(2) ibid reads:-- "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were. Prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
12. Learned counsel for the appellant argued that section 29(2) ibid provided for the dismissal of suit, appeal or application filed after the period of limitation prescribed therefor by any special or local law different from the period prescribed by the Limitation Act by making the provisions of section 3 ibid applicable to such suits, appeals or applications, which otherwise applied to suits, appeals or applications for which the period of limitation was prescribed by the Limitation Act.
According to the learned counsel section 29(2) ibid had nothing to do with entertaining a suit, appeal or application filed after the period of limitation. He argued that section 29(2) ibid referred to suits, appeals and applications in the same way as were referred to in section 3 ibid which applied to suits, appeals and applications as against section 5 ibid which applied only to appeals and applications and not to suits. He further argued that clauses (a) and (b) of subsection (2) of section 29 ibid provided for the applicability of sections 4,
9. To 18 and 22 and not the rest of the Limitation Act, only for the purpose of `determining the period of limitation' prescribed for any suit, appeal or application by any special or local law and that too for the purpose of their dismissal if the same were found to have been filed after the period of limitation determined in accordance with the said provisions to the extent they were not expressly excluded by such special or local law.
13. The argument of the learned counsel regarding applicability of section 5 of the Limitation Act to appeals, irrespective whether the period of limitation was prescribed by the Limitation Act or by any other law, may have some force but in view of the law laid down by the Supreme Court in Abdul Ghaffar's case supra, which has been consistently followed, we cannot accept his argument and leave the same be considered by the. Honourable Supreme Court at an appropriate time for revisiting its earlier decisions on the point keeping in view the principle of 'advancement of remedy and suppression of mischief in a very large number of cases.
14.
14.The verification of the record and proceedings of the Banking Court shows that the judgment- debtor had applied for the certified copy of the order on 3-10-2006, which was delivered to him on 11-10-2006. This shows that the file was not with the Presiding Officer and the ground taken for admitting the appeal is not correct. Had it been so, the judgment-debtor would not have been provided the copy on 11-10-2006 on his application moved on 3-10-2006.
15. As mentioned above, in the present case it is clear that the appellant had no sufficient cause for not filing appeal within the period of limitation prescribed therefor and, therefore, no case for admitting the -appeal for hearing is made out even under section 5 of the Limitation Act. It was for these reasons that, by a short order passed on 3-3-2009, the appeal, being time barred, was dismissed with no order as to cost.