1. ' Brief facts out of which the present appeal arises are that the respondents secured a loan from the appellant for construction of building on Plot No,249-D, Gulshan Ravi Scheme, Lahore.
2. Agreement was also executed between the petitioner and respondents. Property was also mortgaged in favour of the appellant on 26-10-1980. Respondents had to pay the loan to the appellant on monthly instalments of Rs,780 but they had failed to repay the loan in terms of the agreement. The appellant being aggrieved filed application under section 30 of the House Building Finance Corporation Act, 1952 before the Additional District Judge, Lahore. Respondents filed reply of the application and controverted the allegations levelled in the plaint. Out of the pleadings of the parties learned Additional District Judge framed the following issues:
(1) Whether the application has not been filed by duly authorised person and is not properly verified? OPR
(2) Whether the application is misconceived, vague and ambiguous? OPR
(3) Whether the respondents have already cleared all the outstanding amount by 19-11-1995? OPR
(4) Whether the applicant had not served any notice to the respondents, if so, its effect? OPR
(5) Whether the application is mala fide and has been filed to harass the respondents, if so, its effect? OPR
(6) Whether the claim of the applicant with regard to the interest is repugnant to the Injunctions of Islam and cannot be recovered? OPR
(7) Whether the act of the petitioner with regard to changing the category of area was without notice to the respondents is thus illegal? OPR
(8) Whether the petitioner has got no cause of action to file the application? OPR
(9) Whether the respondents have refused/failed to repay the amount in question and have thus commented breach of terms and conditions of the registered mortgage deed and the petitioner is entitled to the decree for possession as prayed for in view of the averments made in plaint? OPP
(10) Relief.
(11) Learned Additional District Judge dismissed the application vide judgment, dated 6-11-2000.
3. The appellant-applicant being aggrieved filed time-barred appeal before this Court along with application under section 5 of the Limitation Act for condonation of delay.
2. Learned counsel for the appellant submits that there is a panel of Advocates to conduct the cases on behalf of the appellant in the Courts of law. The Advocates have to inform the progress of the cases to the appellant time to time. Appellant had filed application through Mr. Ansar Mehmood, Advocate. The aforesaid counsel did not inform the appellant/applicant about the result of the case and the appellant came to know about the decision of the case when they had applied for obtaining copies of the same which they had received on 26-2-2001. The appellant/applicant did not file appeal well in time on account of negligence of the counsel.
4. Learned counsel for the appellant further submits that it is a sufficient ground for condonation of delay. In support of his contention he relied upon the following judgments: 2000 SCMR 827 (It is pertinent to mention here that there is no judgment on that page and 2001 SCMR 894 (Abdul Qadeer Ismail's case).
3. I have considered the contentions of the learned counsel for the appellant/applicant and perused the record myself. It is admitted fact that appellant/applicant had filed application under section 30 of the House Building Finance Corporation Act, 1952, before the Additional District Judge, Lahore who dismissed the application vide judgment, dated 6-11-2000. The appellant filed appeal before this Court on 12-3-2001 and also filed C.M. 2-C-2001 for condonation of delay under section 5 of the Limitation Act. The question for determination is whether the provision of section 5 of the Limitation Act is applicable in the present case as the one month time was fixed to file appeal under section 30(10) of the House Building Finance Corporation Act, 1952. The question of law has been decided by the Division Bench of this Court in Syed Muhammad Alam's case (PLD 1970 Lahore 6) and the relevant observation is as follows: "The words 'by or under any enactment' indicate that section 5 of the Limitation Act is not of general application to all the enactments, but can be made applicable by the provisions of an enactments. This further supports the view that section 29, being a special provision dealing with local and special laws, will override the provisions of section 5 of the Limitation Act. If that is so, the mandate contained in clause (b) of subsection (2) of section 29 of the Limitation Act being in absolute terms will prevail and the application of section 5 of the Limitation Act, shall have to be held as excluded in respect of special and local laws. The Act under consideration being admittedly a special law, the above discussion shows that section 5 of the Limitation Act is not applicable to appeals filed under section 18 of that Act."
5. ' The above quotation from the judgment of the Supreme Court clearly shows that whenever a special or local law does not make provision, directly, for the condonation of delay or for the application of section 5 of the Limitation Act, it means, keeping in view of the general hardship, that there is a lacuna or a defect in the legislation. We are well aware of the judicial pronouncements by the superior Courts, particularly by the Supreme Court, that it is not for the Courts to fill in the lacuna or remove the defects in the enactments. It is for the Legislature to look into the matter. May be that in the present matter also, keeping in view may occasions which can arise and can create hardship if section 5 of the Limitation Act is not made applicable, the legislative defect/ lacuna is removed by the appropriate legislative measure; but we are unable to substitute our judgment for that measure."
6. ' The aforesaid proposition of law was also considered by the Hon'ble Supreme Court in Allah Dino's case 2001 SCMR 286 and laid down by the following principle: "But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. 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, as held in the cases (i) the Canara Bank Ltd. v. The Warden Insurance Co. Ltd. (AIR 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and another v. Fazal Hussain and others (1983 SCMR 1239), (iv) Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Kar.. 76) and (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330).
7. ' The reported judgments cited by the learned counsel being distinguishable need no detailed discussion.
8. ' Thus, we fail to notice any flaw in the impugned judgment relating to interpretation of section 5 of the Limitation Act, qu = section 115(2), C.P.C., therefore, no interference is called for.
9. ' The petition is accordingly dismissed being without any substance and leave to appeal is refused."
10. The judgments cited by the learned counsel for the appellant/applicant are distinguished on facts and law in view of the pronouncement of the Hon'ble Supreme Court in the aforesaid judgments.
11. ' In view of what has been discussed above, section 5 of the Limitation Act is not applicable in the present proceedings. Therefore, appeal is dismissed as time-barred.