JAWAD HASSAN, J.---Through the instant First Appeal Against Order, filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellant seeks setting aside of order dated 23.01.2015, passed by the Judge Banking Court-III, Lahore (the "Banking Court") whereby his application for setting aside ex parte judgment and decree dated 16.03.2011 was dismissed.
2. None appeared on behalf of the Appellant. However, the grounds mentioned in the Appeal inter alia are that the impugned order is against law and facts; that the Court below has failed to appreciate the fact that the ex parte judgment and decree has been passed against the Appellant; that the impugned order suffers from legal infirmities and material illegalities; that the impugned order has been passed against the verdict of the apex Court, as such liable to be set aside; that neither at the time of final judgment and decree the Appellant has been heard nor at the time of deciding his application filed under section 12(2) of the C.P.C./the Ordinance.
3. On the other hand the representative of the Respondent submitted that the impugned order has rightly been passed and there is no illegality in the impugned order. As such, the instant Appeal is liable to be dismissed.
4. We have heard the arguments and perused the record.
5. From the perusal of record it reveals that the Respondent Bank filed a suit against the Appellant for the recovery of Rs,620,655.66/- along with cost of suit, cost of funds and other charges payable by the Appellant under the Ordinance. In pursuant to issuance of summons by the Banking Court the Appellant filed application for leave to appear and defend the suit which was dismissed by the Banking Court and the suit was decreed in favour of the Respondent-Bank. Subsequently, the Appellant filed application under section 12(2), C.P.C./the Ordinance which too met to the same fate. The contention of the Appellant is that on the relevant date the Appellant was not present, therefore, the order passed by the Banking Court without hearing the Appellant is against the principle of natural justice and therefore, the ex parte judgment and decree be set aside.
6. Through this Appeal the Appellant has challenged the order dated 23.01.2015 regarding dismissal of his application filed under section 12(2), C.P.C. For the sake of brevity the said Section is reproduced herein below and is as under: "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
7. From the above, it is clear that the Appellant has to prove the plea of i. fraud, ii. misrepresentation or iii. want of jurisdiction. From the perusal of record it reveals that when the decree was passed by the Banking Court although the Appellant was not present yet the Judge Banking Court has duly taken into consideration the grounds mentioned by the Appellant in his application for leave to appear and contest the suit and therefore, passed the said judgment and decree. We have minutely examined the whole record which does not disclose any element of fraud, misrepresentation or that the Banking Court has passed the judgment and decree without jurisdiction. The Appellant has failed to establish the said elements required for setting aside the judgment and decree passed by the Banking Court.
8. Furthermore, admittedly, the instant Appeal has been filed with certain delay and the Appellant has also filed application under section 5 of the Limitation Act, 1908 for condonation of delay. The ground agitated in the said application is that the Appellant had chosen the wrong forum i,e, E.F.A. which was disposed of on 26.03.2015 by this Court, therefore, the delay may be condoned. Section 22 of the Ordinance is very much relevant which provide 30 days time to file an Appeal against the order impugned. Section 5 of the Act or section 29(2) of the Act provides that where in a special law or in a local law, different period of limitation has been described, then section 5 of the Act is not applicable. Since the Ordinance is a special law and the Act is a general law, therefore, section 5 of the Act is not applicable for filing of the appeal beyond the limitation period.
9. To fortify the above said provision, reliance is placed on the case titled NIB Bank Ltd. v.
Muhammad Zia Ali Qureshi (2016 CLD 2160) wherein it has been observed as under: "In order to appreciate, if the provisions of section 5 of the Act, is applicable to this case, it would be advantageous to reproduce section 29 of the Act, which is the relevant provision of law regarding applicability or otherwise of provisions of the Act, when a special law or statute itself provides period of Limitation for filing any suit, appeal of application:- "29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) 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."
A plain reading of the above provisions of law, reveals that for the purpose of determining period of Limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions as, and to the extent to which, they are not expressly excluded by such special or local law; section 29(2) (b), provides that the remaining provisions of section 5 of the Act, are not applicable to the appeals filed under section 22 of the Ordinance as the Ordinance, which needless to say is a special law, itself specifically provides period of limitation for filing the appeal to the High Court against the judgment, decree, sentence or final order, passed by the Banking Court."
The Hon'ble Division Bench in the case supra has also relied upon the judgment of the Hon'ble Supreme Court of Pakistan titled Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286) wherein the Hon'ble Supreme Court of Pakistan held as under: ""5 .......where the law under which proceedings have been launched prescribes itself a period of limitation then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act."
Reliance is also placed on the case titled Messrs Pangrio Sugar Mills Ltd. v. Bankers Equity Ltd. and 5 others (2015 CLD 637) and Tariq Mehmood v. Atlas Bank (2015 CLD 959).
10.Based on the Sections of the Ordinance, the Act and the principles elaborated above, this Appeal is admittedly barred by time.
11. On the touchstone of the above discussion and case law, the application (C.M. No, 3/2015) is hereby rejected. Consequence, the C main Appeal is also dismissed.