2005 PLP 1094 (CLD)

MIAN SAQIB NISAR, J.

At the very outset, learned counsel for the respondent-Bank has expressed no objection to set aside the decree against appellants Nos.4 to 6, as nothing against them creating their liability has been stated in the plaint. He further has no objection, if their names, as the defendants in the plaint are deleted. We accordingly strike out the names of the said defendants from the array of the parties mentioned in the plaint.

2. Briefly stated the facts of the case are that respondent-Bank brought a suit for the recovery, inter alia against the appellants, who have been sued, as defendants Nos.2 to

7. It has been the case of the respondent-Bank, set out in paragraphs Nos.2, 3 to 5 of the plaint that defendants Nos.2 and 3, stood as mortgagors for the financial facility, granted to defendant No.1. Now default has been committed by the said defendants, resultantly, they being the mortgagors/surety, are jointly and severally liable to pay the said amount. The present appellants filed separate leave application, in which they propounded to never have created mortgage of their property and claimed that all the documents, undertakings, letters, creation of the charge and mortgage instruments, are fake and are result of collusion between the plaintiff and defendant No.1. the application came up for hearing before the learned Court along with the other application of the co-defendants, which was dismissed and simultaneously suit has been decreed.

3. Learned counsel for the appellant contends that the Court below has passed the judgment and decree without even adverting to the grounds set out in the leave application of the appellant. Moreover, no separate finding has been given, if the appellants have failed to make out a case for leave to appear and defend, rather, the appellants were tagged with the other defendants of the case and by dismissing their application, the appellants have also been knocked out. It is submitted that the appellant on account of their denial of the creation to the mortgage and execution of the documents, had raised the substantial questions of fact, which could be decided necessarily after recording of the evidence.

4. We have heard learned counsel for the parties and find that in the judgment under challenge, the learned Court below has only considered the question about the mortgage of the property by defendants Nos.1, 8 and 10; there is no application of mind to the case of the appellants, whether they too had or otherwise, mortgaged their property and if substantial proof was available on the record in this behalf, on the basis of which, leave should have been refused to them. Therefore, we find this to be a case of sheer non-application of mind by the learned Banking Court; such judgment cannot be sustained, resultantly, by allowing this appeal, the judgment and decree against the appellants is hereby set aside; deeming their application for leave to appear and defend as pending, the trial Court is directed to decide the application, after hearing the parties within two months. As regards appellants Nos.4 to 6, are concerned, on account of statement made by learned counsel for the respondent-Bank, their names have been struck off from the array of the parties and resultantly, there remains no decree against them. M.H./T-22/L Case remanded.