1994 PLP 276 (CLC)

Sh. Nazir Ahmad for Appellant. A suit for recovery of Rs.750,754, instituted by the United Bank Ltd. against Khawaja Muhammad Farooq, proprietor, M/s Mehar Tannery, Industrial Estate, Multan, on 11‑12‑1989, was decreed ex parte on 13‑2‑1993 by Mr. Akhtar Mehmood Khan, Special Judge, Banking Court, Multan; and an application made by the judgment‑debtor on 3‑3‑1993 for rescission of the ex parte decree was rejected by the same court on 14‑7‑1993. Khawaja Muhammad Farooq has filed this appeal, assailing the validity and operativeness of the ex parte decree dated 13‑2‑1993, and the aforesaid order dated 14‑7‑1993, with a prayer that the same be set aside.

2. The appellant does not deny his liability, although he alleges that the statement of accounts prepared by the bank does not represent reality, for payments made by him have not truly been accounted for and extra expenses and penal interest illegally levied have been inserted therein, and he has been demanding rendition of accounts, which the bank has been refusing to undertake.

3. Well, he had a right to establish his assertions by making appearance in the Court and contesting the case. He, however, evaded service and had ultimately to be served through publication of a notice in the Press. He made an application for leave to defend. The application was opposed by the plaintiff‑Bank, on the ground that it was time‑barred and there was no valid justification for allowing him to defend himself. Repeated adjournments were sought for addressing arguments respecting the aforesaid application by the defendants and when `last' opportunity for the purpose was granted, he opted to absent himself on 13‑2‑1993. His application was rejected and the plaintiff's suit was decreed ex parte on 13‑2‑1993.

4. It is urged by the judgment debtor, as appellant before this Court, that it was obligatory for the Court to have disposed of the application on merits. I am afraid the assertion is not wholly tenable, for there should have been somebody present before the Court, the defendant or his counsel, to pursue the petition. No separate order was passed by the Court, disallowing the same; but in the order awarding ex parte decree against the defendant, it was observed by the court that the application in question was being dismissed in default.

5. It is also to be borne in mind that it was very sketchy sort of application, wherein the defendant had not placed before the Court his stand point in detail, and in the manner made in the instant appeal. He had briefly said that it was a false claim and he viz. the defendant, had obtained no loan from the bank. On the face of it was a blatant lie and a dishonest plea, since it is no longer the case of the defendant as appellant before this Court, that the bank had advanced him no loan or that nothing was due from him.

6. Under law a presumption of correctness was attached to the entries existing in the statement of accounts prepared by the bank; and on the basis thereof the court had proceeded to decree the suit ex parte. Application for setting aside the ex parte decree dated 13‑2‑1993, was submitted by the judgment‑debtor on 3‑3‑1993, but the plea taken therein, on the face of it, was absolutely infirm and implausible. This is usual assertion of a litigant, who adopts evasive attitude and a dishonest posture. He says that he had noted down 3‑3‑1993 as the next date of hearing, the suit having been adjourned on 11‑1‑1993, and that 13‑2‑1993 was not the date given by the Court. This did not appeal to the Court, nor would it impress anybody. The decree‑holder was right in saying that the defendant/judgment‑debtor had only been alert in watching the proceedings, and not pursuing the same, and was interested in only delay. He had throughout been employing dilatory designs, therefor.

7. On the one hand, it is averred by the appellant that 13‑2‑1993 was not a date of hearing in the suit, as the case had been adjourned from 11‑1‑1993 to 3‑3‑1993; and on the other hand it is asserted that on 13‑2‑1993 he had been prevented from appearance in the Court by reason of his critical condition. He claims to have been hospitalised, or having a serious heart attack, in the Intensive Care Unit, in the Nishtar Hospital, Multan. The learned Presiding Officer, Special Court Banking has taken note of the fact that no certificate, in support of heart ailment and hospitalisation, had been tendered with his petition dated 3‑3‑1993 by Khawaja Muhammad Farooq, and the one placed on record for the first time on 14‑7‑1993 indicated that he was a patient of diabetes and had been getting treatment in the DHQ Hospital, Multan. This again reflected absolute lack of honesty on the part of the judgment‑debtor, who had approached the Court with a prayer for annulment of the ex parte decree, with unclean hands and dishonest pleas. It has been remarked by the lower Court that Khawaja Muhammad Farooq's grown‑up sons and his counsel had been renresentatinz him throughout following submission of the application dated 3‑3‑1993, and even on 13‑2‑1993, if Khawaja Farooq was actually indisposed, someone else could appear in the Court on his behalf and make she Court aware of his aliment, as also inability, to attend. Finding the plea taken up by the judgment‑debtor to be absolutely frail and flimsy and whole incredible, his prayer for rescission of the ex parte decree was turned down by the Banking Court on truly valid premises. Whatever has been urged in appeal has indeed already been dealt with by the learned Judge of the Banking Court in a logical, lawful and convincing manner and there are no new grounds available for re‑appraisal of the same and reversal of the conclusions arrived at by the trial Court. We do not find any good reason for interference with the impugned order, which is upheld. The appeal has no force, and is hereby dismissed in limine. AA./M‑1207/L Appeal dismissed.