2005 PLP 1823 (CLD)
Syed RASHID HUSSAIN — Appellant Versus BANK OF PUNJAB through Managing Director and another — Respondents
| Citation | 2005 PLP 1823 (CLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Syed RASHID HUSSAIN — Appellant Versus BANK OF PUNJAB through Managing Director and another — Respondents |
| Primary Law | Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) |
Q1: What are the key laws and sections cited in 2005 PLP 1823 (CLD)?
This judgment primarily cites: Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 1823 (CLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 1823 (CLD) (Syed RASHID HUSSAIN — Appellant Versus BANK OF PUNJAB through Managing Director and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Nadeem Saeed for Respondents.
- MIAN SAQIB NISAR, J.---The respondent-Bank brought a suit for the recovery of Rs.82,75,884 against the appellant, in which, the appellant moved an application for leave to appear and defend the suit, which was listed for hearing on 24th of September, 1998 but due to non-appearance of the appellant, was dismissed for non-prosecution and, simultaneously, the decree amounting to Rs.8,275,884 was passed in favour of the respondent-Bank. Against the above, the appellant did not file any appeal but moved an application for setting aside ex parte decree on the ground that the date was erroneously noted as 14-10-1998 instead of 24-9-1998. Along with the application, affidavit of Mr. Ashar Elahi, Advocate, who was the counsel for the appellant, was also filed. The learned Court below has dismissed the application, primarily, misconceiving that there was no affidavit of the above fact.
Headnotes / Summary
Ss.10 & 21
Application for leave to defend the suit
Said application was dismissed for non-prosecution and, simultaneously, the decree was passed in favour of the Bank
Defendant did not file any appeal but moved an application for setting aside ex parte decree on the ground that the date was erroneously. noted as 14-10-1998 instead of 24-9-1998; along with application, affidavit of the counsel of the defendant was also filed
Banking Court had dismissed the application, primarily, misconceiving that there was no affidavit of the above fact
Whether the date was erroneously noted or otherwise was a question of fact, and if there was any doubt in the mind of the Court that the plea of the appellant, was not fully substantiated from the available record, even, on account of the affidavit of the counsel to the above effect, the Court should have allowed the parties to produce the evidence
Considering the contents of the application accompanied by the affidavit of the counsel, which had not been positively controverted by the Bank, a sufficient cause for the restoration of the application for leave to appear and defend, was made out by the appellant and his application in this behalf should have been allowed
High Court, in circumstances, allowed the appeal, set aside the order of the dismissal of the appellant's application for leave to defend the suit for non-prosecution, with the result that the ex parte decree of the Banking Court also stood set aside
Application of the appellant should be deemed pending before the Banking Court which would be decided in accordance with law.
Judgment & Decree
MIAN SAQIB NISAR, J.
The respondent-Bank brought a suit for the recovery of Rs.82,75,884 against the appellant, in which, the appellant moved an application for leave to appear and defend the suit, which was listed for hearing on 24th of September, 1998 but due to non-appearance of the appellant, was dismissed for non-prosecution and, simultaneously, the decree amounting to Rs.8,275,884 was passed in favour of the respondent-Bank. Against the above, the appellant did not file any appeal but moved an application for setting aside ex parte decree on the ground that the date was erroneously noted as 14-10-1998 instead of 24-9-1998. Along with the application, affidavit of Mr. Ashar Elahi, Advocate, who was the counsel for the appellant, was also filed. The learned Court below has dismissed the application, primarily, misconceiving that there was no affidavit of the above fact.
2. After hearing the learned counsel for the parties, we find that whether the date was erroneously noted or otherwise is a question of fact, and if there was any doubt in the mind of the Court, that the plea of the appellant is not fully substantiated A from the available record, even, on account of the affidavit of the counsel to the above effect, the Court should have allowed the parties to produce the evidence. However, considering the contents of the application, accompanied by the affidavit of the counsel, which has not been positively controverted by the respondent side, we find that a sufficient cause for the restoration of the leave application, was made out by the appellant and their application in this behalf should have been allowed. Resultantly, by allowing this appeal, we set aside the order of the dismissal of the appellant's application for leave to appear and defend the suit for non-prosecution, with the result that the ex parte decree of the Court also stands set aside. The application of the appellant shall be deemed pending before learned Court below which would be decided in accordance with law. The parties are directed to appear before learned Banking Court No. 1, Lahore on 1-7-2004 and the said application be positively decided within a period of one month thereafter. No order as to costs. M.B.A./R-78/L Case remanded.