2002 PLP 379 (CLD)

M.A. Zafar for Appellants. Haji Dildar Khan and Mian Nasir Mehmood for Respondents. Date of hearing: 25th September, 2001. CH. IJAZ AHMAD, J.‑‑‑Brief facts, out of which, the present appeal arises are that the appellants secured a loan from the respondent‑Bank. An agreement was also executed between the appellants and the respondent‑Bank. The appellants failed to re‑pay the loan in terms of the agreement. The respondents being aggrieved, filed a suit for recovery before the Chairman, Banking Tribunal, Faisalabad. The Chairman, Banking Tribunal, issued notice to the appellants. The appellants filed reply to the show‑cause notice before the Chairman, Banking Tribunal Faisalabad. The case was fixed for arguments. The Chairman, Banking Tribunal, directed the learned counsel of the parties to submit written arguments. The learned counsel of the respondents has filed written arguments, but the learned counsel of the appellants failed to file written arguments. The case was fixed on 18‑5‑1995. The Chairman, Banking Tribunal dismissed the reply to show‑cause notice for non‑prosecution and also decreed the suit vide judgment and order dated 18‑5‑1995. The appellants being aggrieved, filed application for setting aside the ex parte decree, before the Chairman, Banking Tribunal. The learned Banking Tribunal, dismissed the application vide order dated 10‑3‑1996. The appellants being aggrieved, filed this appeal.

2. The learned counsel of the appellants submits that the appellants' counsel failed, to note the correct date of hearing i.e. 18‑5‑1995 and thus, was misled about the fixation of the case on 18‑5‑1995. Alongwith this application, an affidavit of the clerk of counsel to the above fact, was also filed. This application has been resisted by the respondents. However, it may be pertinent to state here that no counter‑affidavit was filed. The learned Tribunal on account of the fact that the appellants have not been able to establish a sufficient cause for setting aside of the ex parte decree, dismissed the application and passed the impugned order.

3. We are afraid, the question whether the appellants' counsel noted incorrect date, was a question, which necessarily could be resolved only through recording of evidence, but prima facie, the appellants on, account of the contents of the application supported by an affidavit, were able to prove the same. Thus, if the learned Tribunal was not inclined to record the evidence, in such situation, the application should have been allowed instead of its dismissal. This is a clear illegality committed, therefore, the order impugned cannot be sustainable in law. In the light of above, this appeal is accepted. The impugned order is set aside. Accordingly, the ex parte judgment and decree passed by the Tribunal against the appellants are also set aside with the result that suit of the respondents' Bank and reply to the notice shall be decided afresh after affording opportunity of hearing to the parties. However, it may be pointed out that the respondents have already filed their written arguments in the matter, let the appellants to also file written arguments as required by the Tribunal, within 10 days from today and the Court after considering these arguments shall proceed to decide the matter. In case the written arguments are not filed in that eventuality, the present appeal would deem to have been dismissed by upholding the order in dispute and the judgment and decree. The parties are directed to appear before the learned trial Court on 15‑10‑2001. H.B.T./S‑289/L Appeal accepted/Order accordingly.