2007 PLP 1637 (CLD)

MIAN SAQIB NISAR, J.

Respondent No.1 brought a suit for the recovery of an amount of Rs.27,57,082 against the appellants and others, before the Banking Court at Sargodha. In some paragraphs of the plaint it is specifically mentioned that the appellants obtained the loan from respondent No.1' through .their `Benamidars', the other respondents/defendants of the case. Be that as it may, notices were issued to the appellants on the address mentioned in the plaint through all modes and in the order dated 29-3-2005, it is observed by the Banking Court that .service has been effected, but as the appellants are not present or represented, therefore, they were proceeded ex parte. The case thereafter was fixed for the ex parte evidence on 12-4-2005 on which date, the evidence was not produced by the plaintiff, but still the suit was decreed as prayed for.

2. On 20-4-2005, the appellants moved an application under section 12(2), C.P.C. taking the specific grounds that they were not served; they had no knowledge about the institution of the suit or the ex parte proceedings or the decree; they are not the residents of .the address given in; the plaint rather their address is of Satellite Town, Sargodha and they are the permanent respondents of Mauza `Behak Lurhka'. The application was contested by the respondent and without framing of any issue or enabling the parties to produce the evidence, by simply narrating the factual backdrop of the case, the Banking Court dismissed the same by holding that the application is beyond time having not been filed within 21 days of the date of their service; no application for the condonation of delay has been moved and .that no cause- for the setting aside of the ex parte decree has been made out as the conduct of the appellants is not above board.

3. Learned counsel for the appellants contends that the Banking Court has not applied its. mind to the grounds set out in the application for setting aside the decree; service of the appellants could only be effected. if the notices/summonses were issued to them at the proper address, it is stated in unequivocal terms that they were not the residents of the address given in the plaint upon which the notice was issued, this fact was controverted by respondent No.1 and thus, in all fairness and to satisfy the norms of justice, it was incumbent upon the Court to have framed an issue in this behalf enabling the parties to prove and disprove their respective pleas; having not done so, the Banking Court has committed glaring illegality in passing the .impugned order, which could not be sustained. Learned counsel for respondent No. 1 has contested the matter.

4. We have heard the learned counsel for the parties and find that the facts highlighted above undoubtedly could only be resolved if the parties were enabled an opportunity of producing the evidence. The Banking Court without there being any material on the record, .simply on the basis of the pleadings of the parties which is not the substitute of the evidence, has decided this matter which is untenable in the eyes of law. Therefore, the impugned order is set aside and the matter is remanded to the Banking Court with the direction to frame appropriate issues involved in the matter and to decide it in accordance with the law. The appeal is accordingly allowed. F.B./S-155/L?????????????????????????????????????????????????????????????????????????????????????? Case remanded.