1996 PLP 248 (MLD)

CH. KHURSHID AHMAD, J: ‑‑The appellant had filed a suit for recovery of Rs.51,948‑with future mark up and liquidated damages against the respondents in the Court of Chairman Banking Tribunal No.l, Lahore. Notices were issued and defendant No.2 appeared. The other respondents were proceeded ex parte, who were the alleged guarantors. The authenticity of the charged documents was challenged by defendant No.2 on the basis of which suit was filed. On 6‑2‑1993 the learned Tribunal was further pleased to observe: ‑‑‑ "In the circumstances it is deemed expedient that in the first instance the suit be decreed against defendants Nos.l, 3 and 4." We would assume that the suit against defendants Nos.l, 3 and 4 was decreed as the same was deemed expedient and also that they had chosen to be absent. On 11‑4‑1993 the following order was passed:‑‑‑ "Nemo for the Plaintiff. Malik Baste' Ahmad and Mr. A.H. Bhutta, Advocates for Defendant No.2. The remaining defendants are absent as before. The plaintiff/Banking Co. has failed to file correct and revised accounts statement pursuant to order dated 8‑3‑1993. In the circumstances, the plaintiff's suit is dismissed in default."

2. The appellant/plaintiff filed an application to set aside the order of dismissal and for restoration of the suit which was summarily dismissed the same day. The present appal was filed with the prayer that the impugned orders dated 19‑4‑1993 as well as dated 11‑4‑1993 be set aside and suit be restored. The appeal was filed in office on 17‑5‑1993.

3. The learned counsel for the appellant submitted that the suit was dismissed in default by the Tribunal on 11‑4‑1993 and that he had moved the application for restoration which was also dismissed on 19‑4‑1993. There being no provision in Banking Tribunal Ordinance, 1984 for an appeal by the Brag Company, therefore, this appeal be considered as appeal against the order dated 19‑4‑1993, under Order XLIII, Rule 1, C.P.C.

4. Learned counsel for the respondent had objected to the maintainability of the appeal. According to him, section 9 of the Ordinance LVIII of 1984 specifically provides eventualities in which appeal could be filed and no other order, decision or judgment/decree was appealable. Relying on National Bank of Pakistan and 7 others v. Emirates Bank International Ltd. and another 1993 CLC 2009, M/s. Middle East Bank Ltd. v. Zubair Ahmad Khan Afghani 1990 MLD 909 he submits that the appeal was not maintainable and was liable to be dismissed on that score as also that the Banking Tribunal Ordinance was special law and provisions laid down therein override the provisions of the general law, as such, unless provided in the Ordinance itself, no appeal or review would lie. 4‑A. The authorities cited above are not applicable in the present case. Both related to appeal/revision against interlocutory orders passed by the Tribunal in suits whereas the present appeal was against a final order in a proceeding for setting aside the order dismissing the suit for non-?prosecution. 4‑B. The Banking Tribunal Ordinance which was a special law has not provided the procedure tq be adopted in cases where the suit was dismissed in default and as the presumption would be that "the Legislature does not make mistakes" we shall have to ‑ rely on section 5(d) of the Banking Tribunal Ordinance, which reads as under:‑‑‑ "(d) A Banking Tribunal shall, in all matters with respect to which procedure has not been provided for in this Ordinance; follow the procedure laid down in the Code of Civil Procedure Act (V of 1908) and the Code of Criminal Procedure, 1898." 4‑C. In view of the above provision we hold that the application for restoration of the suit, dismissed in default, was competent under Order 9, Rule 9, C.P.C. and eventually the appeal against the said order is competent as A provided under Order 43, Rule 1,(c), C.P.C. 4‑D. This R.FA. is, therefore, converted into FA.O. and be registered as such.

5. Learned counsel for the respondent has raised an objection regarding limitation. According to him, the appeal was barred by almost 27 days, of which fact the learned counsel for the appellant was also cognizant and for that reason alone an application under section 5 of the Limitation Act was filed by him. The limitation provided for appeal against the order dismissing an application for restoration as provided under Article 163 of the Schedule to the Limitation Act, 1908 is thirty days. The impugned order was passed on 19‑4‑1993 and the appeal was filed on 17‑5‑1995. We hold that the appeal was within time.

6. The impugned order by which the application for restoration was dismissed comprises three lines. It reads‑‑‑ "The perusal of the application indicates that no sufficient cause for restoring this suit has been shown. The application is, therefore, dismissed in limine." We are afraid, the valuable right of a party could not be summarily disposed of in a manner as done by the Tribunal in the present case. As observed earlier section 5(d) of Banking Tribunal Ordinance 1984 had specifically provided that in all matters with respect to which procedure had not been provided therein the Banking Tribunal shall follow the procedure laid down in C.P.C. (Act V of 1908). In the Ordinance itself procedure was not provided for an eventuality arising out of dismissal of suit for non‑prosecution. It was mandatory on the part of the Tribunal to follow the provisions as laid down in Order IX, Rule 9, C.P.C. We may further observe that the Tribunal which had the powers to pass such an order had the inherent jurisdiction to undo the same and the summarily manner adopted by the Tribunal in disposing of the application cannot be approved. The order dismissing the application for restoration is, therefore, not sustainable in law.

7. In view of what has been stated above the appeal is accepted. Order dated 19‑4‑1993 is set aside. Application for restoration of the suit is restored. The Banking Tribunal is directed to dispose of the said application after summoning the respondents/defendants. He shall order the respondents to submit their reply and in case the parties be at variance issues shall be framed and the application shall be disposed of in accordance with law after recording of evidence of the parties.

8. There shall be no order as to costs. AA./M‑2619/L??????????????????????????????????????????????????????????????????????????????????? Case remanded.