TARIQ JAVAID, J.---This civil revision is directed against the judgment and decree dated 21-12- 2009 passed by the learned Appellate Court, whereby the petitioner's appeal was dismissed.
2. Contention of the learned counsel for the petitioner is that the only ground for dismissal of the appeal is that the appeal was filed after expiry of limitation period, hence it was time-barred. The learned counsel for the petitioner also pointed out that an application under section 5 of the Limitation Act for condonation of delay in filing appeal was also filed along with the Memorandum of appeal and no order has been passed on the application for condonation of delay. The learned counsel for the petitioner relies on Messrs A. Chaudhry and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney (2005 CLD 875) Said Shah and 12 others v. Mst. Khurshid Bibi (1987 M LD 2490) and Yawar Hussain v. Ansar Ali Khan (2010 CLC 46) and submits that once an application for condonation of delay was filed then it was imperative for the learned Appellate Court to first decide the application under Section 5 of the Limitation Act before passing the impugned judgment and decree.
3. On the other hand, learned counsel for the respondents has vehemently argued that 'right to produce evidence of the petitioner was closed on 28-7-2009 and since then no serious attempt was made by the petitioner to get the order dated 28-7-2009 set aside. Similarly, the judgment and decree was passed on 14-9-2009 and the petitioner did not assail the same within limitation period. However, after expiry of limitation, he had after thought out filed an appeal against the judgment and decree along with application for condonation of delay. No plausible explanation was disclosed for condonation of delay in filing of appeal.
4. Heard. Record perused.
5. In Messrs A. Chaudhary and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney (2005 CLD 875) a learned Division Bench of this Court came to the conclusion that where an application under section 5 of the Limitation Act is filed along with memorandum of appeal, it is appropriate for the Court to first decide the application for condonation of delay and then decide the main appeal. Para No, 6 of the judgment is re-produced below for facility of reference:--- "During the examination of the available record, we find that the appellants Nos. 2 to 4, along with their afore-noted parent application, on the same date, filed another application under section 5 of the Limitation Act of the condonation of delay, which application was not decided by the learned Judge Banking Court earlier in the impugned order dated 31-3-2003 or through a separate order.
The said application has completely been blacked out from the proceedings, while the same was in fact filed by the appellants Nos.2 to 4, as is evident from the certified copy of the application, under Section 5 of the Limitation Act, (Page 23 of the present file) which is supported by the affidavit of Muhammad Shahid Ali Chaudhry. It is settled law by now that if any miscellaneous application is filed by the parties, it is incumbent upon the Court to decide the said application, either way, through a specific order and then to decide the main case and failure to decide such an application would vitiate the main judgment, if any case-law is needed judgment reported as Pak Carpet Industries Ltd. v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Yagoob v. Baqir and 2 others 1993 CLC 1319 Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 M LD 150 can be referred."
Similar findings have also been recorded in Said Shah and 12 others v. Mst. Khurshid Bibi (1987 M LD 2490) and Yawar Hussain v. Ansar Ali Khan (2010 CL 46), it appears to be a settled principle of law that before deciding main appeal the learned Appellate Court ought to have decided application for condonation of delay; therefore, the impugned judgment and decree passed by the learned Appellate Court is set aside, the case is remanded with direction to decide application for condonation of delay before passing judgment and decree in appeal within a period of two months positively.