2005 PLP 1733 (CLD)

MUHAMMAD SAYEED AKHTAR, J.

The plaintiff/ appellant filed a suit on 14-1-1997 for declaration and permanent injunction against the defendants/ respondents. It was averred in the plaint that Malik Iftikhar Elahi, deceased, defendant No.3 (the predecessor-in-interest of the respondents) was the first cousin of plaintiffs mother. He was also an employee of the defendant-Bank. 2/3 years ago the defendant No.3 obtained the signatures of the plaintiff on a blank paper while he was a student for opening his account in the Bank. Later on it transpired that some "Benami" loan was obtained by the defendant No.3 in the name of the plaintiff for purchasing a car under the Prime Minister's Yellow Cab Scheme. On 12-9-1997 the plaintiff received a letter from the Bank claiming Rs.2,72,137 as outstandings in A/C No.495. The plaintiff claimed to be a "Benamidar" only. Malik Iftikhar Elahi, defendant No.3 died during the pendency of the suit and his legal heirs were impleaded who are now respondents in this appeal. An application for leave to appear and defend the suit was filed by the defendant No.3 (the predecessor-in-interest of' respondents Nos.3 to 3(vi) admitting that the signatures of the plaintiff were obtained on blank paper. However, it was alleged that the real beneficiary of the transaction was Muhammad Mushtaq who was a friend of defendant No.3. On the request of Muhammad Mushtaq the finance facility was availed and he had also shown his willingness to accept the said liability. The defendant-Bank also filed an application seeking leave to appear and defend the suit denying all the allegations. It was alleged that at the time of the execution of the documents the plaintiff was a law student and had executed the documents of his own free-will for obtaining the finance facility. The widow of the defendant No.3 also filed her petition for leave to appear and defend the suit admitting that her late husband had obtained Daewoo Racer Car under the Prime Minister Yellow Cab Scheme with the consent: of' the plaintiff and that there was no "Benami" transaction. The Bank should obtain the possession of the vehicle from the workshop. The Bank should also waived the entire interest/mark-up as she had to maintain six minor daughters. She offered to pay the remaining principal amount after crediting the proceeds of sale of vehicle in 36 instalments. The learned Banking Court-I, Lahore dismissed the suit on the ground that "from the petition of the lady widow the truth has come out. The claim of the plaintiff has been shattered thereby. Therefore, the plaintiff has no case and the contention that he came within the ambit of a "Benami" is absolutely devoid of force".

2. The appellant contended that the suit of the appellant was dismissed on the plea raised by the widow of defendant No.3. The widow had accepted the liability notwithstanding the suit has been dismissed. None has entered appearance on behalf of the respondents. They are proceeded against ex parte.

3. We have gone through the judgment of the learned Banking Judge and perused the record. The order shows that the suit has been decided in a cursory manner merely on the plea raised by the widow which appears to be inconsistent with the defence raised by her husband. The defendant No.3, while he was alive, had also filed an application for leave to appear and defend the suit. He stated that the finance facility was obtained with consent of the plaintiff but the real beneficiary was one Muhammad Mushtaq. The applications filed by the defendants for leave to appear and defend the suit have also not been decided. The judgment of the learned Judge Banking Court is devoid of any reasons. We, therefore, allow this appeal, set aside the judgment of the learned Banking Court and remand the case to him for decision in accordance with law. H.B.T./A-1018/L Case remanded.