2014 PLP 1177 (CLD)

MEHMOOD MAQBOOL BAJWA, J.

Suit for recovery of Rs.3,38,89,824/42 was instituted by the Muslim Commercial Bank Limited through its Branch Office at Dunya Pur, District Lodhran against the present appellants under section 9 of The Financial Institutions (Recovery of Finances) Ordinance, 2001 (XIVI of 2001) (hereinafter called the Ordinance) in which process was directed to be issued in the name of present appellants according to the mandate of section 9(5) of the Ordinance. According to the order dated 12th of October, 2006 passed by learned Judge Banking Court-III, Multan, the present appellants who were summoned through bailiff of the court, registered A/D post, courier service and publication of proclamation in two newspapers failed to appear resulting in initiation of ex parte proceedings and granting decree in favour of respondent-bank vide judgment and decree dated 10th of November 2006. Application under section 12 of the Ordinance was made by the appellants for setting aside the ex parte proceedings dated 12th of October 2006 and judgment and decree dated 10th of November 2006, resisted by the respondent-bank which was dismissed by learned Banking Court on 5th of January, 2008.

2. Aggrieved by the orders as well as judgment and decree, the present appellants have questioned the legality and validity of same contending that learned trial Court while non-suiting the appellants did not appreciate the contentions of the appellants regarding their non-service which matter relating to the factual controversy could not be decided summarily. Submitted that order dated 12-10-2006 initiating the ex parte proceedings is bad in law and mis interpretation of provisions of section 9(5) of the Ordinance as service upon the appellants was not "duly effected".

3. On the other hand, learned counsel for the respondent-bank while controverting the arguments and defending the impugned orders and decree submitted that all modes envisaged by section 9(5) of the Ordinance were adopted by the learned trial court to procure the attendance of present appellants being defendants who were required to make an application for leave to defend the suit within the stipulated period but no such action was taken by the appellants. Submitted that since application under section 12 of the Ordinance was made for extraneous consideration being aware of pendency of suit as served in order to delay the satisfaction of decree in execution proceedings, therefore, dismissal of the same summarily vide order dated 5-1-2008 is hardly subject to any exception.

4. Perusal of order dated 2-9-2006 recorded by learned Judge Banking Court-III, Multan suggests that according to mandate provided in section 9(5) of The Ordinance, service of the present appellants was required to be procured by adopting all modes mentioned in the provision under reference but perusal of the reports on registered envelope as well as summons clearly suggest that the respondents were not residing at the given address and as such process through summons could not be served upon present appellants. Likewise, perusal of reports made by the representative of courier service clearly suggest that present appellants are not residing at the given address.

5. Since there were unanimous reports not only on the summons but also on the registered post and courier envelopes that the present appellants are not residing at the given address, therefore, assertion of appellants prima facie finds support. Copies of proclamation published in the newspapers are available on the file of learned trial Court but the proclamation the newspapers disclosed the address where the appellants were statedly not residing. Since specific plea was taken by the appellants that they were not residing as the given address, prima facie, finding support from the reports referred to, therefore, the fate of the application for setting aside the ex parte decree made by the appellants could not be decided summarily and learned trial Court should have disposed of the application by casting issues and providing an opportunity to the adversaries to substantiate their contention involving factual controversy.

6. Omission on the part of learned trial Court to act in the manner suggested makes all the orders impugned as well as judgment and decree nullity in the eye of law and as such while accepting the appeal and setting aside the orders impugned as well as judgment and decree assailed, the matter is remanded to the learned trial Court to decide the application for setting aside the ex parte judgment and decree in accordance with law and as observed which shall be deemed to be pending before the learned Judge Banking Court-III, Multan.

7. The learned counsel for the parties, in whose presence judgment has been announced are directed to appear before the learned Judge Banking Court-III, Multan on 16th of September 2013 and the application shall be decided expeditiously but not later than 15th of October 2013 as the matter is old.

8. Compliance report shall be sent to the Deputy Registrar (Judicial) of this Bench for perusal of the Court.

9. Parties are left to bear their own costs. KMZ/P-18/L Appeal allowe