WAQAR JALAL ANSARI vs NATIONAL BANK OF PAKISTAN and another

' MIAN HAMID FAROOQ, J.--- The petitioner/judgment-debtor, through the present petition, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the order, dated 31-3-2008, whereby the learned Division Bench of the Lahore High Court, Lahore dismissed his application for condonation of delay in filing the appeal (C.M. No,3-C of 2007) as well as the Appeal (R.F.A. No,214 of 2007) on the ground of limitation.

2. Respondent-Bank filed the suit for recovery of Rs,6,37,763 along with mark-up, against the petitioner and respondent No,2, before learned Judge Banking Court, Lahore, under the provisions of Financial, Institutions (Recovery of Finances) Ordinance, XLVI of 2001 (hereinafter referred as Ordinance). The petitioner filed the application for leave to defend the suit, but the same was dismissed by the learned Judge, Banking Court and consequently, the suit was decreed against the petitioner and respondent No,2, jointly and severally, vide judgment and decree, dated 22-1- 2007. The petitioner, filed time-barred appeal (R.F.A. No,214 of 2007) together with an application under section 5 of the Limitation Act, 1908 (C.M. No,3-C of 2007) for condonation of delay before the Lahore High Court. The only ground agitated in support of the application was that the judgment was not announced on the same day and thus, the petitioner was not aware about the announcement of the judgment and it was on 9-2-2007 that the petitioner came to know about the terms of the judgment. The learned Division Bench of the Lahore High Court at Lahore, after finding that the appeal is barred by time and there is no legal justification to condone the delay, proceeded to dismiss the application and consequently, the appeal vide composite order, dated 31-3-2008, hence the present petition.

3. Learned counsel for the petitioner contended that the petitioner was arrayed as "guarantor" and as no application was filed by the "principal debtor", therefore, this was a fit case for grant of leave to defend the suit to the petitioner. He has' further submitted that the judgment was not announced on the date incorporated in the judgment itself but it was subsequently, rendered, therefore, the petitioner could not file the appeal within time and this was "sufficient cause" to condone the delay.

4. We have heard the learned counsel for the petitioner and examined the available record.

Admittedly, the petitioner filed time-barred appeal, under section 22 of the Ordinance, together with an application under section 5 of the Limitation Act, seeking condonation of delay in preferring the appeal. Section 10 of the Ordinance provides complete mechanism and methodology for filing and deciding an application for leave to defend the suit before a Banking Court. Upon examination of section 10 of the Ordinance, which deals with an application for leave to defend the suit, we do not find that it envisages that when no application was filed by the "principal debtor", a guarantor is automatically entitled for leave to defend the suit. Section 10(8) of the Ordinance provides that a Banking Court shall grant the defendant leave to defend the suit if it is of the view that the defendant has raised substantial questions of law or fact in respect of which the evidence needs to be recorded (underlining is ours). In the case in hand, according to the estimation of the Judge, Banking Court, the petitioner in his application for leave to defend the suit, could not raise substantial question of law and fact requiring evidence to be recorded and thus, he dismissed his application, for which no exception could be taken at this stage. Moreso, when petitioner's appeal against the judgment and decree of the Banking Court was dismissed being barred by time.

5. As regards the other contention of the learned counsel, we have examined the judgment passed by the Banking Court on 22-1-2007 and find that the case was heard on 22-1-2007 and the judgment was announced on the said date. Record of the case does not indicate that the learned Judge Banking Court reserved the judgment on 22-1-2007 as unsuccessfully canvassed by the learned counsel. Additionally, the petitioner has not placed on record any material to substantiate his plea that in fact the judgment was reserved on 22-1-2007. It may be noted that presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before judicial forum. Reference can be made to the case of Fayyaz Hussain v. Akbar Hussain and others 2004 SCM R 964 and Abdullah v. Shaukat 2001 SCM R 60. Both the contentions raised by the learned counsel are devoid of merits.

6. In the above perspective, we have examined the impugned judgment and find that the same does not suffer from any legal infirmity and the learned High Court after adverting to every aspect of the case and considering all the relevant dates has rightly held that "... Even if the time consumed in refiling the appeal is condoned even then the appeal is barred by eight days and dismissed petitioner's application for condonation of delay as well as the appeal. No case for grant of leave to appeal is made out.

7. In view of the above, the present petition is devoid of merits, hence stands dismissed and leave to appeal is refused.