2005 PLP 1083 (CLD)

MIAN SAQIB NISAR, J.

The appellant brought a suit for declaration and permanent injunction with consequential relief, against the respondents before the learned Banking Court IV, Lahore. In substance, the case of the appellant in the plaint, is that the amount, which has been referred to in the plaint and claimed by the Bank, was never disbursed to the appellant and therefore, the same is not due. Respondent-Bank filed an application for leave to appear and defend, however, without. specifically allowing this application, the Banking Court, through the impugned order, has rejected the plaint of the appellant. Hence this appeal.

2. Learned counsel for the appellant has argued that there were substantial and serious questions of law and facts, raised in the plaint, which were controverted by the respondents in the leave application;. the plaint did disclose a cause of action and therefore, it could not have been rejected under Order VII, rule 11, C.P.C.

3. Confronted with the above, the learned 'counsel for the respondent has not been able to satisfy us, if on the basis of the contents of the plaint, which were most significant for determining whether the plaint disclosed a cause of action or otherwise, coupled with the documents, attached thereto, the Court could have applied the provisions of Order VII, rule 11, C.P.C. by concluding that it does not disclose a cause of action. However, the argument of learned counsel for the respondent that the suit was not maintainable in its present form, suffice it to say that this question has not been considered by the learned Court below and in appeal, for the first time, we are not inclined to consider the same. However, the fact remains that the provisions of Order VII, rule 11, C.P.C., have been erroneously applied and the impugned order, therefore, suffers from serious infirmity, which cannot be sustained, resultantly, the same is set aside; the matter is remanded to the Court below, where the application of the respondent for leave to appear and defend, shall be deemed pending and the Court shall decide such application and at the relevant time, may also consider the question about the maintainability of the suit, if raised in the application.

4. At this juncture, we have been apprised that the respondent-Bank has also filed a suit for recovery, against the appellant, in which, the appellant has moved an application for leave to appear and an apprehension has been expressed by the bank's counsel, that on account of this order, the appellant may not automatically get the leave to appear and defend the suit. In order to dispel the above, we may observe that it is for the Court below to apply its independent mind to both the cases and decide the matter in accordance with law and this judgment shall not be construed in a way entitling the appellant to the leave in the suit brought by the bank as a matter of B course. Parties are directed to appear before the learned Banking Court on 15-12-2003. M.H./M-247Q/L Case remanded.