2014 PLP 191 (CLD)

This F.A.O. under section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001 is directed against the orders dated 15-9-2010 and 17-1-2011 passed by the Judge Banking Court No.1, Multan.

2. Brief facts of the case are that the appellant filed a suit against the respondents for the recovery of Rs.8,928,247.98 along with costs of suit and costs of funds. Respondents filed an application for leave to defend. On 15-9-2010 the suit was fixed for filing of reply to the application for leave to defend but the suit was dismissed for non-prosecution.

3. Thereafter appellant filed an application for restoration of the suit before the Judge Banking Court-I along with affidavits of the counsel and that of his clerk as also the relevant pages of the diary. Reply to the said application was filed but restoration application was dismissed vide order dated 17-1-2011. It was contended in the application for restoration that on 17-8-2010 the clerk of the counsel attended the court and wrote the next date of hearing 16-9-2010 in the case diary. It was asserted that non-appearance of the applicant or his counsel on 15-9-2010 was neither deliberate nor intentional but because of wrong noting of the date in the case diary. In reply, the contentions of the applicant were controverted. It was contended by the counsel for the respondents that the order dated 15-9-2010 was final, conclusive and against the said order an appeal should have been filed under section 22(1) of the Financial Institutions (Recovery of Finances) Ordinance 2001 but an application was moved before the Judge Banking Court-I, Multan and against its dismissal FAO was filed which was not maintainable under the circumstances.

3. On the other hand, learned counsel appearing on behalf of the appellant opposed the arguments and contended that at the time of dismissal of the suit on 15-9-2010 at 3-30 p.m. presence of clerk of the defendants is marked. It was also averred that no counter affidavit was filed by the respondents. Learned counsel for the appellant has placed reliance on the esteemed judgments of the Hon'ble Division Bench of this Court reported as Muslim Commercial Bank Limited v. Tariq Saeed and another (2004 CLD 902 (Lahore) and United Bank Limited v. Messrs Khawaja Radio House through Proprietor and 2 others (2004 CLD 1609) wherein it was held that appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001 is competent against the order of the court disallowing the application for restoration of suit when it is in consequence of the order that led to dismissal of the suit due to non-prosecution. On the question of limitation it was held that in case of restoration of suit that was dismissed for non-prosecution, limitation for the purpose of appeal is to be reckoned from the date of the order when application for restoration of that suit was dismissed rather than the date when the suit was dismissed.

4. We have heard the learned counsel for the parties and perused the record.

5. It is apparent from the order dated 15-9-2010 that at the time of dismissal of the suit at 3-30 p.m. only clerk of the counsel for the respondents was marked present. Pages of the diary appended with this appeal also reveal that the case was wrongly noted in the counsel's diary. There is no rebuttal to the affidavits brought on record along with application for restoration of the suit. The facts and circumstances discussed in the said esteemed Judgments of this Court are fully applicable in the present case. The orders dated 17-1-2011 and 15-9-2010 passed by the Judge Banking Court-I, Multan are set aside. The appeal is accepted and the case is remanded to the Judge Banking Court-I, Multan with direction to proceed with the matter from the stage of its dismissal. MH/S-93/L Appeal allowed.