2006 PLP 1403 (CLD)

MIAN HAMID FAROOQ, J.

Present appeal is directed against order dated 20-10-2003, whereby the learned Judge Banking. 'Court. dismissed appellant's application for setting aside ex parte decree dated 4-8-2003.

2. Briefly stated facts of the case are that the respondent-Bank, on 16-6-2003, filed the suit for recovery of Rs.6,61,193, against the appellant, before the learned Judge Banking Court, Faisalabad: summons were issued to the appellant through the bailiff of the Court, by registered post and proclamation in two newspapers i.e. daily "Awam" and "The News"; summons through bailiff were, statedly, served upon the nephew of the appellant on the address furnished in the plaint; no application for leave to defend the suit was filed by the appellant and the exparte decree, for recovery of Rs.6,61,193, along with costs of funds and costs of suit, was passed, against the appellant, by the learned Judge Banking Court, vide judgment and decree dated 4-8-2003. The appellant, on 20-8-2003, filed the application under section 12 of the Ordinance No.XLVI of 2001, for setting aside the ex parte decree dated 4-8-2003 and the learned Judge Banking Court, after finding that the summons through bailiff of the Court were served, which were received by one Haroon Jabbar, nephew of the appellant, the registered envelope was not returned to the Court, the proclamation was published in two daily newspapers and the appellant was sufficiently served, dismissed appellant's application, vide impugned order dated 20-10-2003, hence the present appeal.

3. Learned counsel for the appellant contends that the appellant was not served, as he is permanently residing at United Kingdom since the year 1999 till date; merely on the basis of substituted service, containing the incorrect address of the appellant, ex parte decree could not be' passed; alleged service of the appellant, through one Haroon Jabbar, was fictitious and manoeuvred by the respondent-Bank and appellant's application under section 12 of the Ordinance No.XLVI of 2001 should have been decided after providing opportunity to the parties to produce evidence. Conversely, the learned counsel for the respondent-Bank has supported the impugned judgment and decree and states that the financial facility was availed by the appellant, when he was residing in Pakistan; even if, he shifted his abode to United Kingdom, he did not furnish his latest address to the respondent and that was the reason why the suit was filed at the last known address of the appellant.

4. We have heard the learned counsel and examined the available record. Upon the examination of appellant's application for setting aside the ex parte decree and the reply furnished by the bank, we are of the view that the said application could not be decided simply after hearing the parties. Under the circumstances, we feel that the learned Banking Court should have afforded sufficient opportunity to the parties to produce evidence in support of their respective claims. Case of the appellant was that no notice was served upon the appellant, as he was not residing on the address furnished in the plaint. Respondent and the learned Banking Court have mainly relied upon the summons issued through bailiff, which were reportedly received by one Haroon Jabbar stated to be nephew of the appellant and the proclamation made in two newspapers. It may be noted that the registered envelope was not returned to the Banking Court either served or unserved. It could not be held that the summons were effected on the applicant through his nephew as Haroon Jabbar was not produced in evidence by either of the parties, most probably for the reason that .no opportunity was granted to the parties for production of evidence. The fact that the appellant was not found residing at the given address ,and the summons were allegedly received by somebody else, is sufficient to support the claim of the appellant. Had the parties been allowed to lead evidence on the controversies raised by them, the result might have been different. Be that as it may, we feel that the learned Judge Banking Court, while declining to afford opportunity to the parties for recording evidence, has exercised his discretion in arbitrary and fanciful manner. Thus we are inclined to reverse the impugned order.

5. It is important to note that from the above, it may not be construed that the learned Judge Banking Court, in each and every application for setting aside the ex parte decree, is obliged under the law to automatically record evidence of the parties, but it has been left to the discretion of the learned Banking Court to record the evidence or not, as the circumstances of the case require. We have held in the present set of circumstances that the learned Banking Court should have recorded evidence and that the exercise of discretion ' by refusing to record evidence was against the recognized principles of exercise of discretion. 6. 'In the above perspective, we have examined the impugned order and find that the same requires interference, thus we are persuaded to set it aside.

7. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 20-10-2003 is set aside. Resultantly, appellant's application under section 12 of the Ordinance No.XLVI of 2001 shall be deemed to be pending before the learned Judge Banking Court, who shall decide the same after framing issues and recording evidence of the parties, preferably within a period of three months. S.A.K./Z-35/L ???????????????????????????????????????????????????????????????????????????????????? Case remanded.