1. Civil Miscellaneous No,12/C of 1997 ' CH. IJAZ AHMAD, J.--- The brief facts out of which the present C.M. Arises are that the applicant filed R.F.A. No,199 of 1996 which was dismissed for non-prosecution vide order, dated 30-10-1996.
2. The applicant filed present application for restoration of the appeal on 13-1-1997 on the ground that his counsel did not appear on the said date and no notice was ever issued by the office to the applicant for fixation of the appeal on 30-10-1996. He further submits that ex parte order was passed against the applicant by the Banking Court and in case the application is not accepted and the appeal is not restored then the petitioner will be penalized by the act of the Court as well as by the act of his counsel and principles of natural justice will also be violated. He further submits that superior Courts insisted that controversy must be resolved between the parties on merits instead of technicalities.
3. ' The learned counsel for the respondent submits that the instant application is liable to be dismissed as time-barred as the same has been filed after 74 days of the dismissal of the appeal.
4. He further submits that the contents of the application do not reveal at all any cogent reason for nonappearance of the counsel as well as the applicant himself. He further submits that the application is not supported by the affidavit of his counsel, therefore, there is no justification to accept the prayer of the applicant as per principles laid down by the superior Court in the following judgments:--
(i) Rafique Ahmad Khawaja v. Abdul Haleem 1982 SCM R 1229:
(ii) Zulfiqar Ali v. Lal Din 1974 SCM R 162;
(iii) Muhammad Rahim and 16 others v. Mst, Begum Kaniz Fatima Hayat and others 1986 CLC 178.
5. ' The learned counsel for the applicant in rebuttal reiterated the earlier contentions and submitted that the application may be accepted in the interest of justice to resolve the controversy between the parties on merits.
6. ' We have considered the contentions of the learned counsel of the parties and also perused the record ourselves. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties.
7. The appeal was dismissed for non-prosecution on 30-10-1996 and the application for restoration was filed on 13-1-1997. It is pertinent to mention here that the applicant has filed time-barred application without filing any application seeking condonation of delay under section 5 of the Limitation Act, therefore, the application merits dismissal as per principle laid down in Ata Ullah Malik's case PLD 1964 SC 236. Even otherwise, it is the duty and obligation of the applicant to explain each day's delay but he has failed to explain the delay of 74 days in filing the application, therefore, the application is liable to be dismissed as per rule laid down in Nazar Muhammad's case PLJ 1982 Kar. 409 and Qurban Ali's case PLD 1984 SC (MK) 104.
8. ' The contents of the application do not reveal at all any cogent/sufficient reason for condonation of delay or sufficient ground for setting aside the order, dated 30-10-1996. Moreover, it was the duty of the applicant himself to pursue the matter but the applicant remained negligent. It is settled principle of law that nobody should be allowed to get benefit of his own negligence as per principle laid down by the Honourable Supreme Court in the judgment of Raunaq Ali's case reported in PLD 1973 SC 236.
9. ' In view of what has been stated above, this application seeking restoration of appeal is hereby dismissed.