2016 PLP 1059 (CLD)

SHAHID WAHEED, J.

Challenge in this appeal is to the judgment dated 7.12.2006 passed by the learned Judge, Banking Court-III, Lahore.

2. Briefly the facts of the case are that on 18.1.1995 the respondent No.1 (Deutsche Bank) filed a suit for recovery of Rs.35,878,794/- before the learned Banking Court-III, Lahore. In the said suit the present appellants were arrayed as defendants Nos.8 and

9. The suit was decreed vide judgment and decree dated 10.6.2004. On an application, submitted by the present appellants, the said judgment and decree was set aside to their extent vide order dated 17.5.2006. Subsequently, the present appellants filed an application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to defend the suit. This application was contested by the respondent No.1. The learned Banking Court, after hearing both the parties, dismissed the said application vide impugned judgment dated 7.12.2006. Hence, this appeal.

3. It is contended on behalf of the appellants that the learned Banking Court has dismissed the appellants' application for leave to defend the suit without giving any cogent reason; that the appellants in their application for leave to defend the suit had disclosed substantial question of law and facts which could be resolved after recording evidence; that the impugned judgment is result of misreading and non-reading of record and also misapplication of provisions of law; and, that learned Judge, Banking Court -III, Lahore, had admitted the liability of the appellants only to the extent of 1.00 million rupee but on the other hand, dismissed the application summarily without any sound reason.

4. On the other hands, learned counsel for the respondent-bank has submitted that the appellants had mortgaged their properties vide mortgage deed dated 3.1.1990; and, that the impugned judgment is valid and does not warrant any interference by this Court.

5. We have heard the learned counsel for the parties and perused the record. In the present case learned Judge, Banking Court-III, Lahore vide judgment dated 7.12.2006 dismissed the appellant's application for leave to defend the suit in following words: "

8. Heard. In view of the submission raised in the application for leave to defend the suit, no question requires recording of evidence the result of which is that is raised in para 7 can be resolved in arguments as such the application for leave to defend is dismissed." 5(sic.) Perusal of the above said paragraph of the impugned judgment shows that the learned Banking Court has dismissed the appellants' application for leave to defend the suit without giving any reason. Non-giving of cogent reason is a material irregularity which vitiates the judgment. It is settled principle of law that a Judge should accord fair and proper hearing to the person sought to be affected by his order and give sufficiently clear and explicit reasons in supports of orders made by him. After Constitution (Eighteenth Amendment) Act, 2010 this right has become fundamental right under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. The rule requiring reasons to be given in support of his order is, like the principle of audi alteram partem, a basic principle of natural justice and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. In the instant case the learned Banking Court passed the impugned judgment without recording any reason and, thus, same being violative of law and Constitution is not valid.

6. Before parting we deem it necessary to observe that when judicial power is exercised by any Authority normally performing executive or administrative functions the superior Courts insist upon disclosure of reasons in support of order on two grounds; one that the party aggrieved in proceedings before the Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other that obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. This principle on all fours is also applicable to judicial officers who are trained to look at things objectively and, therefore, he is supposed to excel in this trait of character in view of sacred and sensitive nature of his duties and pivotal position which justice occupies in Islam. Injunctions of Islam also enjoins that those who performs the function of a Judge must not only profess profound knowledge and deep insight but also the man of integrity and capable of holding scale of justice even in all circumstances. The judicial officer is not only expected to guard his reputation jealously but also perform his sensitive duty with due diligence and his conduct should not exhibit dereliction of duty and complete failure of exercise of jurisdiction.

7. Since the learned Banking Court has dismissed the application for leave to defend the suit without giving any reason, the impugned judgment dated 7.12.2006 is not a proper judgment; and, shows dereliction of duty and complete failure of exercise of jurisdiction. In these attending circumstances, we are inclined to allow this appeal, set aside the judgment dated 7.12.2007 and to remit the matter to the learned Judge, Banking Court-III, Lahore, to decide the appellant's application for leave to defend the suit afresh strictly in accordance with law within a period of one month.

8. Parties are directed to appear before the learned Judge, Banking Court-III, Lahore, on 15.6.2015. The learned Judge, Banking Court-III, Lahore, shall submit a compliance report to the Deputy Registrar (Judicial) of this Court on 16.7.2015. No order as to costs. MH/I-25/L Case remanded.