2006 PLP 59 (CLD)

SYED ZAHID HUSSAIN, J.

A suit for declaration and permanent injunction instituted by the appellant seeking declaration that notice dated 7-11-2002 and notice dated 20-2-2003 were without jurisdiction and against the facts and were of no legal effect, was instituted by the appellant before the Banking Court, Lahore. In that suit, application for the grant of leave to defend was filed by the respondents. Reply to that application was filed by the appellant/plaintiff. However, when the matter came up before the learned Banking v. Court for consideration on 12-11-2003, the learned Presiding Officer while treating the application for leave as a written statement upheld the objection of the defendants that "the plaint did not disclose any cause of action" and thus, the plaint was rejected under Order VII, rule 11 of the Code of Civil Procedure, 1908. The present appeal is directed against the same.

2. We have heard the learned counsel for the parties and considered their respective stance and the material on the record. We are constrained to observe that the plaint could not be ordered to be rejected for the reasons which prevailed with A the learned Banking Court and the manner the provisions of Order VII, rule 11 of the Code of Civil Procedure, 1908 were invoked. It may be observed that the averments at the stage made in the plaint as to the disclosure of cause of action were to be taken into consideration. It may also be observed that the obtention of loan had indeed not been denied by the appellant. His case was that he had made certain payments to clear the liability towards loan amount and that the demand raised through notices was exaggerated and factually incorrect. Prima facie the averments of the plaint did disclose the accrual of cause of action for the said suit. Since the case was still at the preliminary stage, no extraneous material could be taken into, consideration for non-suiting the appellant/plaintiff. For determining the real controversy and the quantum of liability, the Court could grant leave to defend the suit as was prayed for by the defendants /respondents, but it erred in law to reject the plaint. We are therefore, inclined to set aside the judgment of the learned Banking Court, result whereof would be that the suit as also the application for leave to defend filed by the respondents would be deemed pending before the learned Banking Court, which shall be heard and decided in accordance with law. The appeal is accepted accordingly with no order as to costs. M.B.A./S-444/L????????????????????????????????????????????????????????????????????? Appeal accepted.