1. ' MUSHIR ALAM, C.J.---Allthree appeals arise out of common order passed by learned Single Judge in Suits Nos.401, 402 and 419 of 2007, whereby an application under Order VII, Rule. 11, C.P.C. On similar facts and grounds was allowed and the suits were dismissed being barred by Article 23 of the Limitation Act.
2. ' Along with the appeal an application under section 5 of the Limitation Act for condonation of 7 days delay in filing of the appeals was also moved by the appellant Feroz A. Karirn (H.C.A. No,176 of 2009) on the ground that appellant was heart patient and was treated and admitted to hospital and could 'not instruct the counsel to pursue the appeal. The appellant Yousuf Dada in H.C.A. No,177 of 2009, sought condonation on the, ground that he had gone to Multan and he had no idea as to necessity to contact his Advocate. The appellant Yaseen in H.C.A. No,178 of 2009, sought condonation on the ground that he was attending, his sister who was hospitalized. Learned counsel for the respondent has taken serious exceptions to the grounds taken by each of the appellant to seek condonation of delay as well as on merits.
3. ' Mr. Umer Hayat Sandhu, learned counsel for the appellant contends that since the suit has arisen out of wrongful dismissal dated 16-4-1997 and damages were claimed for malicious prosecution, in which the appellants were acquitted on 30-11-2005. Suits were filed on 23-12-2006 along with an application under section 5 of the Limitation Act, 1908 for condonation of delay. The office raised objection as to the maintainability of the suit on the ground of limitation. Court maintained the objection raised by the Additional Registrar of this Court that section 5 of the Limitation Act does not extend to the suit and so also the court came to the conclusion that the suit is barred under Article 23 of the Limitation Act.
4. We have heard the arguments and perused the record. From the record perused along with application for condonation of delay the appellant Feroz Abdul Karim in H.C.A. No,176 of 2009 relied on his medical record and history showing that he was critically ill since 13th March, 2008. We have examined the record, which shows that indeed the appellant is suffering from cardiac ailment.
5. From the medical history and summary attached to the application shows that he was admitted to hospital on 11-9-2008 and discharged on 14-9-2008. The impugned order was passed on 17-2- 2009 much after his discharge from the hospital and he had ample opportunity to pursue the matter and instruct the counsel to file appeal. The affidavit attached to the application does not explain the delay after his discharge from the hospital on 14-9-2008 and no record has been produced to show that he was incapable or unable to instruct or direct filing of the appeal.
6. ' In H.C.A. 'No,177 of 2009 the appellant Yousuf explained that he had gone to Multan, where he remained busy and "had no idea as to necessity of his matter to contact his counsel. There is no explanation, as to, when he had gone to Multan and when he returned", such explanation is far from satisfactory.
7. In H.C.A. No.178 of 2009 the appellant Yaseen, claimed condonation on the ground that he was attending his sister, who was hospitalized. Record attached with the application show that Mst.
8. Yasmin was admitted on 18-3-2009 and discharged on 29-3-2009, entire medical record produced shows that sister was admitted for clinical examination and test. A "Summary discharge" show that she was admitted on 18-3-2009 and discharged on 29-3-2009 she was admitted for abdominal pain for six months, and after clinical test she was discharged. None of the report suggests that she was diagnosed to be suffering from Cancer. Even otherwise, the appeal was sworn on 27-3-2009 two days before her discharge, which contradict his claim that his sister was so critically sick he could .Not leave her.
9. ' Mr Sandhu drew our attention to the case of Muhammad Yousuf v. Ghayyur Hussain Shah (1993 SCMR 1185), where damages were claimed for malicious presentation. The apex court proceeded an assumption advanced by appellant counsel who submitted that there is no statutory law in. The filed governing the case of malicious prosecution and empowering the Court to award damages therefore, and that in the determination of such dispute principles of English Common Law are followed (page 1118). It was on the basis of such assumptive arguments made by the counsel court at page 1189 held "As regard question of limitation, suffice it to say that the Article applicable in .The situation like the one in hand would be residuary Article 120 of the Limitation Act, under which the period of limitation provided for as six years from the date of accrual of cause of action".
10. ' As noted above apex court applied general provisions of Article 120 of the Limitation Act on the assumption of the counsel that there is no statutory law in the field, whereas Article 23 of Limitation Act provides one year limitation to bring an action for malicious prosecution "from the date when the plaintiff is acquitted or the prosecution is otherwise terminated". It is settled position in law where special provision is applicable, general provision do not apply (see: 1993 MLD B 1550, 2002 YLR 3712 and PLD 2008 Karachi 25). In instant case we are not confronted with limitation to file suit, therefore, case of Muhammad Yousuf (1993 SCMR 1185) is not attracted. In matters in hand as to condonation of delay and limitation in filing appeal involved. As noted above grounds disclosed are far from satisfactory, therefore, applications under section 5 of the Limitation Act in all. The three appeals are dismissed. Consequently appeals fail and are accordingly dismissed being barred by time.