' MAMOON RASHID SHEIKH, J.---Through a short order dated 2-11-2011, for reasons to be recorded later, we had held R.F.A. No,75 of 2006 to be within time.
' The following are the reasons for the short order dated 2-11-2011:
1. At the outset the learned counsel for the respondents has raised the objection that the appeal is hopelessly time barred. The impugned judgment and decree was passed on 21-12-2005. The appellants applied for obtaining certified copies thereof on 22-12-2005. The copies were ready to be delivered on 1-2-2006. The appellants, however, took delivery on 27-4-2006 and filed the appeal on 16-5-2006. The appeal is, therefore, barred by 69 days. Further submits that the application moved by the appellants for condonation of delay under section 5 of the Limitation Act, 1908, is not competent in view of the fact that the law applicable to the instant appeal is the Financial Institutions (Recovery of Finances) Ordinance, 2001, which is a special law, therefore, by virtue of section 29(2) of the Act, ibid, the provisions of section 5 of the Act, ibid, are not attracted to the case. Prays that the appeal be dismissed as being barred by time. Relics on the judgment reported as Akhtar Kaleem v. Citibank N.A. Through Branch Manager (2004 CLD 1361).
2. When confronted with the above, the learned counsel for the appellants submits that the application (C.M.No,1 of 2006) for condonation of delay has been filed under sections 5 and 12 of the Act, ibid, and not just under section 5 of the Act, ibid. Section 29(2) of the Act, ibid, whilst excluding section 5 does not exclude the applicability of section 12 of the Act, ibid. Moreover, the Ordinance, ibid, does not, exclude the applicability of section 12(2) of the Act, ibid, to appeals filed under the Ordinance, ibid. Prays that the application for condonation of delay filed by the appellants may be treated as having been filed under section 12. Even otherwise, quoting of wrong law cannot come in the way of a litigant for obtaining relief.
3. The learned counsel for the appellants further submits that the circumstances under which the certified copies of the impugned judgment and decree were applied for and delivered to the appellants have been narrated in paras 3 and 4 of C.M.No,1 of 2006. He reiterates the sequence of events as given by the learned counsel' for the respondents with the exception that contrary to the provisions of section 12(5) of the Act, (bid, the Copying Agency/office of the learned Banking Court did not intimate to the appellants the date on which the certified copies would be ready for delivery. The appellants were, therefore, constrained to approach the office periodically. On each visit they were not given a definite date. Consequently, when the appellants approached the office on 27-4-2006, they were informed that the certified copies in question were ready and delivery thereof was taken by the appellants. If limitation is computed from 27-4-2006 the appeal has been filed within time. Relies on the judgments reported as Mian Muhammad Sabir v. Malik Muhammad Sadiq through Legal Heirs and others (PLD 2008 SC 577), M. Asif All Khan v. Ghulam Shabbir (2010 YLR 507), Noor Jahan alias Bhoori through L.Rs, Mst. Anjum Mughees and 3 others (2009 MLD 645), Messrs Pak Suzuki Motor Col. Ltd. v. Haji Ahmed Shaikh and another (2005 CLC 680) and Hail Umer and 2 others v. Province of Sindh through Secretary, Revenue Department Karachi and 5 others (PLD 2009 Karachi 247).
4. The learned counsel for the respondents contends that the appellants cannot take benefit of section 12 of the Act, ibid, as their application is in essence under section 5 of the Act, ibid. Moreover, the contention of the learned counsel for the appellants that they were not intimated the date of delivery of the certified copies is belied by the fact that a litigant has to be vigilant. If the appellants had been pursuing their case diligently they would have got the information of preparation of the certified copies. Moreover, a copy of the application form for issuance of the certified copies and/or any endorsement of the office thereon has not been placed on the record.
5. The learned counsel for the appellants reiterates that the office did not intimate any date on which the certified copies would be ready for delivery. In these circumstances the fault does not lie with the appellants. As to the contention that a copy of the application form and/or the receipt has not been filed submits that the same were retained by the Copying Agency at the time of delivery of the certified copies.
6. Arguments heard. Record perused.
7. It is observed that C.M. No,1 of 2006 has been filed under section 5 read with section 12 of the Act, ibid, by the appellants. We find that although the provisions of section 5 of the Act, ibid, have not been made applicable to the proceedings under the Ordinance, ibid, however, the Ordinance, ibid, does not exclude the applicability of section A 12 of the Act, ibid, to proceedings under the Ordinance, ibid. In absence of such an exclusion the provisions of section 12 of the Act, ibid, would be applicable to the instant case. Chairman District Evacuee Trust Committee. Rawalpindi v. And others (PLD 1991 SC 246) refers.
' We are, therefore, inclined to accept the prayer of the learned counsel for the appellants to treat C.M. No,1 of 2006 as an application filed under section 12 of the Act, ibid. The reason therefor is that even where a party has wrongly quoted the provision of law it is for the Courts to apply the correct law in view of the facts and circumstances of the case. Moreover, it is settled law that Courts have always liberally allowed conversion of proceedings of the one kind into the other and mis- description in the title of the proceedings and/or mentioning of a wrong provision of law is not considered fatal to the grant of relief if it is otherwise available under the law to an aggrieved party.
Reliance in this regard is placed on the judgment reported as Mararete Williams v. Abdul Hamid Mian (1994 SCMR 1555). We also rely on the judgment reported as Muhammad Sarwar v. The State (PLD 1969 SC 278) wherein it has been, inter alia, held that a Judge must wear all the laws of the country on the sleeve of his robe, therefore, it is our duty to apply the correct law.
8. In order to resolve the controversy we deem it expedient to go through the provisions of subsections (2) and (5) of section 12 of the Act, ibid. The said provisions are, therefore, being quoted hereinbelow for ease of reference:- "1.2. Exclusion of time in legal proceedings.
(1)
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded.
(3)
(4)
(5) For the purposes of subsections (2), (3) and (4), the time requisite for "obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
(Emphasis provided)
' From a bare perusal of the above it is clear that the time requisite' for obtaining certified copies of the judgment and decree to be appealed against is to be excluded for the purposes of computing the period of limitation. Time requisite is deemed to be the time intervening between the day on which the application for the copy is made and the day actually intimated to the applicant for delivery of the copy. It would, therefore, follow that the Copying Agency is to intimate the date on which the copy would be ready for delivery. In the instant case, however, there is ambiguity as to whether any date for delivery of copies was communicated to the appellants or not. Indeed, the stamp of the Copying Agency does not reveal as to when the application for obtaining certified copies was made or when were the certified copies prepared or what was the date of delivery intimated to the appellants. The only date which appears with the stamp is 1-2-2006 i.e, the purported date of preparation of the certified copies. In absence of the requisite dates we are left with no alternative but to rely upon the facts C narrated in C.M. No,1 of 2006. It is observed that C.M.
No,1 of 2006 is duly supported by an affidavit and although the respondents have raised the objection of limitation yet they have neither filed a reply to the C.M. Nor a counter-affidavit. Since no counter-affidavit has been placed on the record to controvert the narration of facts and the grounds raised in C.M. No,1 of 2006 this alone justifies the acceptance of the facts so narrated.
Reliance in this regard is placed on the judgment reported as Islamic Republic of Pakistan throucih the of Defence, Government of Pakistan, Rawalpindi and another v. Amjad All Mirza (PLD 1977 SC 182).
9. Under the circumstances, we hold that the appeal has been filed by the appellants within time.