2004 PLP 82 (CLD)

‑‑‑‑Ss.12 & 21‑‑‑Ex parte decree‑‑‑Refusal of Banking Court to set aside decree‑‑‑Validity‑‑‑Address of appellant as given in plaint and notices issued to him was that of his previous residence, which was on rent and he had vacated same‑‑ Latest address of appellant was available with Bank, on which statement of accounts and other correspondences were ' sent by Bank before filing of suit‑‑‑Bank did not controvert such factual position‑‑‑Service on previous address was no service in law, thus, appellant had not been served on his proper address‑‑‑High Court allowed appeal, set aside ex parte decree, and permitted appellant to file leave application within 30 days. Khalid Jamil for Appellant. Farooq Beedar for Respondent. Date of hearing: 24th February, 2003. MIAN SAQIB NISAR, J.‑‑‑The instant appeal as also Regular First Appeal No.433 of 2002, are being disposed of together, as both have nexus to the questions involved and are between the same parties.

2. The appellant in Regular First Appeal No.399 of 2001, filed a suit for rendition of accounts against the respondent‑Bank, in which leave was granted to the Bank, but before the issues were framed, the Court recorded the better statement of the plaintiff and dismissed the suit on 9‑4‑2001, holding that the plaint does not disclose a cause of action.

3. After the dismissal of the appellant's suit, the Bank brought a suit for the recovery against him, which is subject‑matter of Regular First Appeal No.433 of 2002. In this suit, notices were issued to the appellant and having failed to file leave application within the time provided and also on account of his failure to appear before the Court, the suit was decreed on 26‑11‑2001, the appellant filed an application for setting aside the ex parte decree, which has been dismissed on 17‑5‑2002, hence this appeal.

3. In Regular First Appeal No.399 of 2001 learned counsel for the appellant states that the Court below has not followed the proper procedure by framing the issues and conducting the trial, therefore, the plaint of the appellant has been illegally rejected.

4. Confronted with the above, learned counsel for the respondent has not been able to show as to under what law, the suit had been decreed, when after the grant of leave to the respondent‑defendant, it was obligatory upon the Court to have framed the issues and permitted the parties to produce evidence. Because according to the law, the examination of the parties to the lis under Order 10, C.P.C. is for the purposes of ascertaining the real matter in controversy and such better statements cannot be used as a means of trial. Thus in the light of above, the impugned decree cannot be sustained and is hereby set aside. The matter is remanded to the learned Banking Court for disposal in accordance with law.

5. As far as Regular First Appeal No.433 of 2002, is concerned, suffice it to say that according to the appellant, his latest ‑address available with the respondent‑Bank was House No.E‑77, Phase‑1, Lahore Cantt., on which the statement of accounts and other correspondences was also made by the respondent‑Bank, before filing of the suit, whereas in the plaint and the notices issued to the appellant, his previous address i.e. House No.233, Block S Phase‑II, Defence, was mentioned, which premises were on rent with the appellant and he has vacated the same. This factual position has also not been controverted by the counsel for the Bank, resultantly, as the appellant had not been served on his proper address, therefore, the service on previous address was no service in law, and the ex parte decree was liable to be set aside on the application of the appellant in this behalf. Therefore, by allowing this appeal the impugned order dated 17‑5‑2002, is set aside with the result that the application of the appellant for the setting aside of the judgment and decree dated 26‑11‑2002, is accepted; the appellant is permitted to file his leave application within 30 days from today.

6. As regards the argument of learned counsel for the respondent that after passing of the decree, the appellant had given certain cheques and had deposited some cash amount thus this tantamounts to the admission of the liability, suffice it to say that this aspect is relevant to the merit of the case, but for the present, we are only confined to the order of the Banking Court refusing to set aside the decree. The respondent may raise this plea in the leave proceedings before the Banking Court. In the light of above, both these appeals are allowed. S.A.K./M‑1756/L Appeals allowed.