MUHAMMAD TASNIM, J. - With the appeal an application under Section 5 of Limitation Act, 1908 has been filed whereby the appellants have prayed for condonation of delay in filing the appeal on the ground that delay in filing appeal was neither deliberate nor intentional but due to the circumstances beyond the control of the appellants. It was further stated in the application that previous advocate who was representing the appellants before the learned Banking Court did not inform the appellants about the passing of the judgment and decree on 4.2.2010 and 19.3.2010 respectively. It was further pleaded in the application that Appellant No. 2 being of advance age was unable to enquire about the proceedings before the Banking Court and he is also an ailing person.
2. Facts leading to the controversy in the present appeal are summarized as under:-
3. Respondent No. 1-Bank filed Suit No. 1439 of 2007 before Banking Court No. V, Karachi, for recovery of money under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter called Ordinance 2001) against the appellants and Respondents No. 2 and 3. After service of summons appellants filed application for leave to defend under Section 10 of Ordinance 2001. Such application came to be dismissed per order dated 8.1.2010. Subsequently, the learned Banking Court passed judgment on 4.2.2010 and decree was drawn on 19.3.2010. Against the aforesaid judgment and decree present appeal was filed by the appellants in Court on 2.8.2011.
4. Learned counsel for the appellants in support of application under disposal has submitted that delay in filing present appeal may be condoned on the ground that Appellant No. 2 is of advance age and an ailing person hence he could not attend the proceedings himself before the Banking Court. He further submitted that after dismissal of leave to defend application on 8.1.2010 the learned counsel representing the appellant before the Banking Court did not Inform the appellants about passing of judgment and decree in the matter. He further submitted that the judgment and decree passed by the learned Banking Court came to the knowledge of the appellants for the first time when auction proceedings were conducted by the Banking Court on 11.7.2011 which was brought to the notice of the appellants on 12.7.2011. He further submitted that after having the knowledge of passing of judgment and decree the appellants applied for certified copies of judgment and decree on 23.7.2011 which was supplied to them on 30.11.2007 and present appeal was filed on 2.8.2011.
5. We have heard the learned counsel for the appellants and have, perused the record.
6. From the perusal of record it appears that leave to defend application was dismissed on 8.1.2010 and judgment in the matter was passed on 4.2.2010 whereas decree was drawn on 19.3.2010. As per submission of learned counsel for appellants that they acquired knowledge of passing of judgment and decree on 12.7.2011. However, appellants applied for certified copies of judgment and decree on 23.7.2011. No explanation from 12.7.2011 to 23.7.2011 has been offered by the appellants. Under law each day's delay is to be explained. Section 3 of the Limitation Act, 1908 imposes a mandatory duty upon Court to dismiss a suit, appeal or an application if it has been instituted after the prescribed period of limitation and a party wishing to take advantage of Section 5 of the Limitation Act must therefore, satisfy the Court that it had not been negligent and had been prosecuting its case with due diligence and care.
7. Next contention of learned counsel for the appellants that previous advocate of appellants did not inform about the passing of judgment and decree to the appellants is not supported by any material even the appellants have not disclosed the name of previous advocate in the application or the affidavit, In the case of JHANDA v. MAQBOOL HUSSAIN, ETC. (1981 SCMR 126) the Hon'ble Supreme Court of Pakistan while dealing with the issue on negligence on the part of the counsel has observed as under:- "..... Here, we are dealing with a case of gross negligence on the part of the counsel to inform the petitioner of the result of his case in the High Court and also clear negligence on the part of the petitioner to keep himself in touch with the progress of the case in the High Court, as was his duty to do. In this connection we may, with advantage, refer to the decision in two recent cases, namely Mustafa v. Settlement Commissioner (1) and Muhammad Nawaz v. Mst Sakina Bibi (2)."
8. In the case of SHER MUHAMMAD V. SAID MUHAMMAD SHAH (1981 SCMR 212) the counsel for the party failed to communicate his client about the fate of litigation and condonation was sought on this ground while dealing with the issue the Hon'ble Supreme Court of Pakistan has observed as under:- It was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learnt of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay, as observed by this Court in Mustafa v. Settlement Commissioner (1) and Muhammad Nawaz v. Mst. Sakina Bibi (2)."
9. In the case of MUSTAFA V. SETTLEMENT COMMISSIONER, BAHAWALPUR DIVISION, BAHAWALPUR (1974 SCMR 104) while dealing with the ground raised for condonation of delay due to non-receipt of intimation about dismissal of proceedings the Hon'ble Supreme Court of Pakistan has dealt with the issue as under:- "............ The petitioner has tried to make out a case that the said learned counsel never gave him intimation about the dismissal of his petition, because, the unregistered letter written by the learned counsel conveying this information never reached him due perhaps to the disturbed conditions in the country as a result of the 1971-War.
We are not satisfied that the explanation for the delay put up by the petitioner is either genuine or convincing. It is obvious that the petitioner has been negligent in not keeping himself informed about the fate of his case."
10. It is by now settled that negligence of the counsel is the negligence of the party because he is the agent of the party, In case of gross negligence on the part of the counsel and while the party may have a good case for proceeding against him, his negligence cannot form a ground for extension of time under Section 5 of the Limitation Act. A party wishing to take advantage to Section 5 must satisfy the Court that it has not been negligent rather pursuing its case with due diligence and care, and was not inactive.
11. With regard to the contention of learned counsel that Appellant No. 2 is an ailing person, no medical report showing ailment of Appellant No. 2 has been brought on record except two photostat copies of prescription issued by some doctor of Ziauddin Hospital which do not show the ailment of Appellant No. 2. Under the law each day's delay was to be explained by the appellants.
Seventeen months have passed from the date of passing of judgment and decree in the matter and no plausible explanation whatsoever has been brought on record by the appellants as to why appeal was not filed in time.
12. With regard to advanced age of Appellant No. 2 no material has been brought on record. Even otherwise, old age has not been considered a ground for condonation of delay under Section 5 of Limitation Act, 1908 by the Superior Courts.
13. This point came-up for consideration before a learned Division Bench of this Court in the case of MST. SADDIQUNNISA v. KHAN SAHIB AGHA MUHAMMAD SULTAN MIRZA AND OTHERS (PLD 1972 Karachi 103) where appellant in the reported judgment sought condonation of delay in filing the appeal on the ground of old age. The learned Division Bench has dealt with the issue as under:- "6. If we look at the application for condonation of delay we find that it is supported by an affidavit in which two pleas were raised. One of them was that the appellant was an old woman and the other was that she was suffering from kidney disorder. Neither of these excuses were adequate for condoning the delay of 103 days, particularly because we find that certified copies were obtained, memorandum of appeal was prepared and presented, in spite of the old age and illness of the appellant. "
14. It is settled law that in order to have the benefit of Section 5, Limitation Act, it is the duty of the appellants to explain the delay that elapses beyond the period allowed by the law for filing the appeal. The existence of sufficient cause is condition precedent for the exercise of the discretion under this section. The expression "sufficient cause" is not defined anywhere in the Limitation Act but it is settled beyond dispute that it must mean a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which, by due care and attention, the party could have avoided, cannot be a sufficient cause. The test, therefore, whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention; in other words, whether it is a bona fide cause, inasmuch as nothing shall be deemed to be done bona fide or in good faith which is not done with due care and attention. Learned counsel for the appellants has failed to make out a case for condonation of delay in filing of appeal, In the circumstances the application (CMA No. 1770 of 2011) was dismissed by the following short order dated 4 8,2011:- This is an application under Section 5 of the Limitation Act seeking condonation of delay in filing of the appeal.
We have heard the learned counsel for the appellants. For the reasons to be recorded later, this application is dismissed. As this application is dismissed, consequently, the appeal being time- barred, the same is also dismissed. Remaining applications are also disposed of."
15. These are the reasons for the above short order.