2002 PLP 264 (CLD)

Crescent Sugar Mills and Distillery Limited v. Central Board of Revenue and others PLD 1982 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC (Pak.) 104 ref. Ch. Muzammal Khan for Petitioners. Tariq Nawaz Bhatti for Respondents. The brief facts out of which present writ petition arises are that the petitioners secured loan from the respondents‑Bank. An agreement was also executed between the petitioners and respondents‑Bank. The petitioners failed to discharge their liabilities in terms of the agreement executed between the petitioners and respondents‑Bank. The respondents‑Bank filed a suit for the recovery against the petitioners in the Banking Court No.2, Lahore. The suit was decreed vide judgment and decree dated 4‑10‑1992. The respondents‑Bank filed an execution petition before the learned Banking Court. The petitioners filed an application under Order 21, rule 83, C.P.C. The petitioners were directed to deposit Rs.1,00,000 in favour of the respondents‑Bank vide order dated 29‑.6‑1994. The application was dismissed by the Banking Court vide order dated 12‑7‑1994 for non‑prosecution and subsequently, the Banking Court had already appointed Malik Ghulam Rasool, Advocate as Court Auctioner. He was directed to proceed on with the auction proceedings and send his report by 5‑10‑1994. The petitioners being aggrieved, filed this writ petition.

2. Learned counsel of the petitioners submits that the petitioners have already paid. Rs.1,76,000 out of the finance amount and that they had also made an application under Order XXI, rule 83, C.P.C. which was not disposed of on merits, sufficiently showing the bona fides of the petitioners. He further submits that it is the duty and obligation of the Banking Court to dismiss the application of the petitioners on merits as the petitioners have deposited Rs.1,00,000 to the respondents‑Bank in terms of the order of the learned Banking Court dated 29‑6‑1994 which was also borne out from the order dated 12‑7‑1994. He further submits that notice was sent to the respondents‑Bank and representative of the respondents‑Bank was present on 12‑7‑1994, therefore, the learned Banking Court was erred in law to dismiss the application of the petitioners for non‑prosecution, merely on the ground that the petitioners failed to deposit process fee.

3. Learned counsel of the respondents submits that the Banking Court passed order in accordance with law. He further submits that the petitioners did not want to discharge their liabilities and did not want to satisfy the decree. He further submits that the impugned order, is valid in the eyes of law. He further submits that the learned counsel of the petitioners failed to point out any infirmity or illegality in the impugned order. He further submits that the writ petition is liable to be dismissed as the petitioners have approached this Court with unclean hands.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself.

5. It is better and appropriate to re‑produce the material facts to resolve the controversy between the parties in chronological order. The petitioners filed applica tion under Order XXI, rule 83, C.P.C. On 29‑5‑1994, the petitioners wanted to deposit Rs.1,00,000 to show their bona fide, which was accepted by the learned trial Court. The petitioners deposited Rs.1,00,

000. The application was dismissed for non‑prosecution on 12‑7‑1994 merely on the ground that the petitioners failed to deposit the process fee.

6. Second order dated 12‑7‑1994 reveals that representative of the respondents‑Bank was present on the same day in which the Court Auctioner was directed to proceed with auction proceedings. In case the aforesaid facts are put in juxtaposition, then it brings the case in the area that the learned Banking Court passed order dated 12‑7‑1994 for dismissal of the application for non prosecution without applying its independent mind. It is not believable that the representative of the respondents entered appearance on the said date without serving the notice. The order dated 12‑7‑1994 for dismissing the application of the petitioners for non‑prosecution merely due to non‑deposit of process fee is highly technical. The learned trial Court has powers to dismiss the application on the aforesaid reasons by virtue of Order IX, rule 2, C.P.C. It is settled principle of law that provision of this rule is not of imperative nature, rigid application thereof is not warranted. The Court is not bound to pass order of dismissal. In arriving to this conclusion, I am fortified by the following judgments:‑‑ Messrs Hoechst Pak Limited v. Messrs Ch. Agriculture Traders' 1993 CLC 1892. Shamroz Khan and others v. Muhammad Amin and others PLD 1978 SC

89. It is also settled principle of law that such order, nevertheless, is not to be passed when the defendant attends the Court in person or by agent on such day as per principle laid down in reported judgment Court in case Rehmat Ali v. Fazal Hussain and 8 others 1990 CLC

761. B According to this rule, it is discretion of the Court to dismiss or not to dismiss the application. It is settled maxim that such discretion is to be exercised sparingly only in a case of grave negligence and not in routine. In arriving to this conclusion. I am fortified .by the said case of Rehmat Ali v. Fazal Hussain and 8 others (supra) 1990 CLC

761. The petitioners are non‑suited in spite of the facts that they had shown their bona fide to deposit the Rs.1,00,000 to the respondents‑Bank in terms of their commitment on 29‑6‑1994. It is also settled principle of law that superior Courts insisted that cases must be decided on merits instead of technicalities as per principle laid down by the Hon'ble Supreme Court in the following judgments:‑‑ Manager, Jammu and Kashmir, State Property v. Khuda Yar and another PLD 1975 SC 678 and Said Muhammad and others v. M. Safdar and others PLD 1989 SC 532.

7. In view of what has been discussed above, the impugned order dated 12‑7‑1994 for dismissing the application for non‑prosecution due to non‑deposit of process fee is not sustainable in the eyes of law. It is settled principle of law that when the basic order is without lawful authority then superstructure shall fall on the ground automatically. In arriving to this conclusion, I am fortified by the following Judg ments:‑ Crescent Sugar Mills and Distillery Limited v. Central Board of Revenue and others PLD 1982 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC (Fak.) 104.

8. For what has been discussed above, the writ petition is accepted with no order as to costs, meaning thereby the application of the petitioners under Order XXI, rule 83, C.P.C. shall be deemed to be pending before the learned Banking Court. Parties are directed to appear before the learned Banking Court on 25‑10‑2001, who is directed to decide the application of the petitioners in accordance with law after providing proper hearing to the parties. With these observations, the writ petition is disposed of. S.A.K./T‑65/L Petition accepted