2010 PLP 596 (CLD)

TUFAIL H. EBRAHIM, J.

This application under section 151, C.P.C. has been filed by the Advocate for defendant who has prayed that he may be allowed to argue this case so that the matter may be decided on merits as his absence on 22-10-2009 was not deliberate or intentional. The said application is supported by personal affidavit of the learned counsel. The brief facts leading to this application are that the suit under section 9 of the Financial Institutions (Recovery of Finances) Ordinance of 2001 was filed by the plaintiff and in response thereto an application under section 10 being C.M.A No.5293 of 2009 was filed on 23-4-2009, the matter was fixed for hearing of C.M.A No.5393 of 2009 on 29-9-2009, however on that date learned counsel for the defendant was called absent and the hearing was adjourned to a date in office. From the record it appears that the learned counsel for the plaintiff had filed an application under section 10(7) in the office on that date. The matter was again fixed for hearing on 22-10-2009 on which date learned counsel for the defendant was not present in the morning and after hearing the learned counsel for the plaintiff the matter was reserved for orders. Subsequently on the same day the learned counsel for the defendant orally requested that through some counsel he came to know that the matter was heard in his absence and has been reserved for orders, he prays that his arguments may also be heard, which request vas not considered as the learned counsel for plaintiff was not available and learned counsel for defendant was directed to file proper application. In the present application which is supported by the personal affidavit of learned counsel for the defendant, it has been stated that in the computerized cause list this case was not listed under his name and therefore, he was not aware about the fixation of the case. He has further argued that on coming to know of the hearing of such case on .22-10-2009 he rushed to the Court to seek indulgence for giving him opportunity for hearing his arguments and since the learned counsel of the plaintiff was not available therefore as per directions of the Court he has filed this application. He has further argued that he has not received the copy of the application filed by the plaintiff. He also contends that the learned counsel for the plaintiff has also placed on record some documents with statement on that day and this Court should have adjourned the matter to enable the learned counsel for the defendant to file objections to the documents filed by the counsel of the plaintiff. He prays that since no order has been passed by this Court therefore, in the interest of justice he should be granted a fair opportunity to defend the case. Learned counsel further states that no counter affidavit has been filed to this application and therefore the same should be allowed as prayed. The learned counsel for the plaintiff opposes this application and states that he has filed the counter affidavit on 21-10-2009 but was not able to deliver the same to learned counsel for the defendant, he further submits that he will not rely on his counter affidavit and will only restrict his arguments on the legal aspects. He has argued that under section 27 of the Financial Institutions (Recovery of Finances) Ordinance of 2001, this Court shall not revise, or review or call or permit to be called, into question any proceeding judgment, decree, sentence, or orders of a Banking Court or legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance and the only remedy available to the defendant was to file appeal under section 22 of this Ordinance. Learned counsel for the defendant has argued that since no order has been passed therefore, he cannot file any appeal. He has referred to the case of Messrs Baghpatee Service (Pvt.) Limited and 6 others v. Messrs Allied Bank of Pakistan Limited reported in 2001 CLC 1363 at page 144, wherein my lordships Mr. Justice Sabhiuddin Ahmed and Mr. Justice Zahid Kurban Alvi were pleased to observe that:-- "There is a clear distinction between review of an earlier order and recalling one passed on account of non-appearance of a party. In the former, the merits of an earlier order are considered, but in the latter only the cause of non-appearance is to be taken into consideration. In the former case, the power must be conferred by statute but in the latter stems from the principles of natural justice required to be read into every law. The former is excluded by section 27, but the latter continue to remain available." Since the non-appearance of the Advocate of defendant in the morning has been fully explained, therefore any order passed without giving a fair opportunity of hearing would be deemed to violating the principle of natural justice and the defendant would be condemned unheard, more particularly when copy of the replication and the documents filed by the plaintiff were not provided to the learned counsel for defendant. In these circumstances, this application is allowed as prayed and the office is directed to fix C.M.A No.5293 of 2009 for rehearing. S.A.K./M-41/K?????????????????????????????????????????????????????????????????????????????????? Application allowed.