1997 SCMR 1149 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑This judgment will dispose of Civil Petitions Nos.300‑K of 1994 and 301‑K of 1994 as common question of law arises in both these cases. The facts relevant for disposal of present petitions are that the respondent bank in the above petition instituted suits for recovery of the amounts due against the petitioners under Banking Tribunals Ordinance, 1984 (hereinafter to be referred as the Ordinance' only). The suits instituted against the petitioners by the respondent bank in the above petitions were decreed with costs. The petitioners challenged the judgment and decree of the Banking Tribunal under section 9 of the Ordinance which were admitted to regular hearing by the Court as they were considered to be in the nature of the first appeal. The respondent bank on being served in the appeal moved an application pointing out to the Court that in view of the non‑compliance of the provisions of section 9 of the Ordinance the appeals were wrongly admitted as they could not be entertained. Notices of the application filed by the respondent bank were issued to the petitioners and hearing was fixed on 17‑3‑1994. The petitioner counsel, however, did not appear on 17‑3‑1994 before the learned Division Bench. The Court after hearing the counsel of the respondent bank found that the provisions of first proviso to subsection (1) of section 9 of the Ordinance having not been complied with by the petitioners the appeals could not be entertained and accordingly, dismissed the same. The petitioners then moved an application before the learned Division Bench for recalling the ex parte order but that application was also dismissed by order dated 16‑8‑1994. In seeking leave to appeal against the order of learned Judges of the Division Bench dated 16‑8‑1994 Mr. Sabihuddin Ahmad, the learned counsel for the petitioners contended that the learned Judges while dismissing the application for recalling ex parte order erred in holding that they had no jurisdiction to recall the ex parte order as Order XLI, Rule 19, C.P.C. was not applicable in the case. It is, accordingly, contended by the learned counsel for the petitioners that the view taken by the learned Judges that the ex parte order passed in the case could not be recalled is not sustainable in law and, therefore, leave may be granted to give an authoritative pronouncement on the point. We do not find the present case a fit one for grant of leave for the reason that the appeals of the petitioners against the judgment of Banking Tribunal were admitted by the learned Judges of the Division Bench‑of High Court of Sindh treating them as first appeals without adverting to the provisions of section 9 of the Ordinance which specifically provided that no appeal against the decree of Banking Tribunal will be entertained unless the defendant had deposited with the Banking Tribunal the amount claimed in the suit under subsection (6) of section 6 of the Ordinance or the decretal amount. It is not disputed before us by the learned counsel for the petitioners that the decretal amount was not deposited either at the time of the filing of the appeals against the judgment of the Banking Tribunal or at any later stage of the proceedings. The order of admission of the appeals having been passed by the learned Division Bench of the High Court of Sindh in ignorance of the provisions of the first proviso to subsection (1) of section 9 of the Ordinance, was a nullity in the eyes of law and therefore, it rightly recalled it on the application of the respondent bank. The fact that the learned Judges passed order on 17‑3‑1994 in the absence of the counsel for the petitioners is of little consequences as firstly, neither petitioners nor their counsel was present in spite of having notice of the date of hearing of application filed by the respondent bank. Apart from it, the learned Judges while declining to recall the ex parte order dated 17‑3‑1994 fully considered the contention of the petitioners on merits and their conclusion that the amounts required to be deposited before filing of the appeals having not been deposited the appeals were not maintainable, is not open to any exception. We are of the view that no useful purpose would have been served by recalling the order dated 17‑3‑1994 and rehearing the application of the respondent as it was not disputed before the learned Judges of the Division Bench that the petitioners have not deposited the decretal amount before the Banking Tribunal at the time of filing of the appeal. No case for interference with the judgment of Division Bench of the High Court is made out. The petitions are, accordingly, dismissed and leave to appeal is refused. A.A./M‑3352/S Petitions dismissed.