2004 PLP 712 (CLD)

Withdrawals Deposits Balance Principle 13,84,038 13,84,038 Mark‑up till 28‑2‑1997 5,60,700 19,44,738 Mark‑up for 210 days 1,45,324 20,90,062 C E D 29,986 21,20,048 Amount Adjusted 2,73,000 18,17,062 Admittedly, the respondent‑Bank has attached with the plaint the documents relating to the year 1995, reportedly executed by the appellants, which do not find mention in the plaint. The Bank did not plead its case on the basis of these documents. Respondent‑Bank did not attach a single document relating to the period in question, mentioned in the contents of the plaint. We are of the view that in the absence of documents pleaded in the plaint and on the basis of documents relating to the year 1995, the suit could not have been decreed. This fact brings the case in the area that the plaint was not duly supported by the statement of account, which was also not verified in terms of section 4 of the Bankers' Book Evidence Act, 1891, which is a condition precedent in terms of section 9 of the aforesaid Act.

5. Statement of account produced on record, as mentioned above, was not verified as such the same could not be used as a piece of evidence against the appellants. In arriving to this conclusion we are fortified by the law laid down in Messrs Jawed Rice Mills v. National Bank of Pakistan 1991 CLC Note 244 at page

190. It is settled principle of law that the requirement of reasonable hearing means a fair opportunity to meet the main case set up by the other side and the desire to administer justice, fair play and equity cannot be enforced in a manner to ignore the technicalities altogether. On such principle even evidence which comes on record and is found contrary to or beyond the pleadings is required to be discarded out of consideration as the law laid down in Amir Ali v. Mrs. Alima Ahmad PLD 1981 Karachi 150 and Citibank v. Tariq Mohsin Siddiqui and others PLD 1999 Karachi

196. It is pertinent to mention here that the appellants also did not deny D the documents attached with the plaint before the Banking Court in their application for leave to defend. In view of what has been discussed above, we accept this appeal, set aside the impugned judgment and decree, meaning thereby that the suit, filed by the respondent‑Bank, and the application for leave to defend, filed by the appellants, shall be deemed to be pending adjudication before the Banking Court. The Banking Court is directed to allow the parties to file documents in support of the contents of the plaint and the application for leave to defend and thereafter decide the case in accordance with law within a period of three months from today. Parties are directed to appear before the Banking Court on 16‑3‑2004, who is directed to decide the same as expeditiously as possible. Parties and their counsel are directed to cooperate with the Court so that the case could be finalized as expeditiously as possible. In case any of the parties would not cooperate with the Banking Court to decide the controversy between the parties as expeditiously as possible then the Banking Court shall invoke the penal provisions against that party so that the matter would be finalized within the prescribed period. S.A.K./M‑109/L Appeal accepted.