2015 PLP 1705 (CLD)

M. TABASSUM AFTAB ALVI, J.

The supra titled appeal has been directed against the impugned decree dated 20-6-2012, recorded by Banking Court, Muzaffarabad, whereby suit filed by respondent-plaintiff, for recovery of Rs.11,49,365.38 was partly allowed to the extent of Rs.9,53,078 against appellant-defendant.

2. The precise facts culminating into filing of the instant appeal are that respondent-plaintiff filed a suit for recovery of Rs. 11,49,365.38 against appellant-defendant before Banking Court, Muzaffarabad, on 3-6-2011. It was stated that defendant is a Mashroom plus Nuts supplier and borrower of plaintiff who approached to the Bank for opening of account and maintained his CD A/c No.2250-1. It was further stated that in the month of November, 2005, defendant applied for a Running Finance Facility under the Mark up based system, consequently after approval of the case, an agreement was executed and loan facility of Rs.8,00,000 was availed by him subject to mortgage of 4 marlas land comprising Survey No. 1758/32 Min situated at Lower Plate, Muzaffarabad, along with necessary title documents. The aforesaid amount was not paid by defendant, therefore, plaintiff constrained to file the suit before the concerned Banking Court. The defendant despite substituted service was absent, therefore, was proceeded ex parte vide order dated 18-5-2012. The Court below passed ex parte decree on 20-6-2012 in favour of plaintiff, hence, the instant appeal.

3. Syed Shahid Bahar, the learned counsel for appellant, herein, vehemently argued that under section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the service upon defendant could be effected through the bailiff of the Court, by registered post acknowledgement due and by publication in one English language and one Urdu language daily Newspapers, however, the service was effected upon his client only through "Daily Siasat" that too locally published, therefore, the impugned decree be set aside and case be remanded to the Court below for disposal of the same on merits. The learned counsel in support of his contention referred to and relied upon case titled Brig (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another [PLD 1993 Lahore 706.1. In case supra, it was held by the Lahore High Court, that where reports of process-server and postman indicated that defendants were not resided at the given address, proper course in such case would be to ask plaintiff to supply correct particulars of defendants' address. Plaintiff would either comply with the direction or show to the satisfaction of the Court that he had no other address of the defendants. It was further opined that if the plaintiff in spite of being in a position to provide other address had not provided or had suppressed the same intentionally or through inefficiency, subsequent ex parte proceedings would be nullity in the eyes of law. Mr. Shehzad Shafi Awan, the learned counsel for respondent, however, raised a preliminary objection that any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within 30 days of such judgment, decree, sentence or final order prefer an appeal to the High Court, however, before filing of the appeal in accordance with provisions of section 22(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, read with Order XLIII, Rule 3 of the Code of Civil Procedure, 1908, has served notice to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing. He argued that as subsection (2) of section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, was violated, therefore, the instant appeal merits dismissal on this solitary ground. The learned counsel in support of his contention referred to and relied upon the following case-law:- (i) Nazir Ahmed Jagirani Balouch v. Province of Sindh and another [1987 CLC 1750]; (ii) Attaullah Khan and others v. Samiullah Khan and others [1991 MLD 941]; (iii) Sindh Industrial Trading Estate Ltd. and 3 others v. Noorani Enterprises [1996 CLC 570]; In case of Nazir Ahmed Jagirani Balouch, supra, it was held by the Karachi High Court, that compliance with provision of Order XLIII, Rule 3 is mandatory and a condition precedent for assumption of jurisdiction by the Appellate Court. In case of Attaullah Khan and others, ibid, it was opined by the Peshawar High Court, that notice under Order XLIII, Rule 3 of Civil Procedure Code, before presentation of appeal was mandatory. In case of Sindh Industrial Trading Estate Ltd. and 3 others, it was held by the Karachi High Court, that requirement of notice as postulated in Order XLIII, Rule 3 of Civil Procedure Code, is mandatory and failure thereof be vitiated by dismissal of appeal.

5. After hearing the learned counsel for parties at length, we have perused the contents of appeal and examined the record.

6. As per record the appellant-defendant obtained loan facility from respondent-plaintiff for establishment of Mashroom plus Nuts supply business to the tune of Rs.8,00,000, however, failed to repay the same to the Bank. The respondent-plaintiff along with markup, cost etc. filed suit for recovery of Rs. 11,49,365.38 before Judge, Banking Court, Muzaffarabad, on 3-6-2011. The appellant was, however, proceeded ex parte by the trial Court vide order dated 18-5-2012 and thereafter suit was partly decreed in favour of the Bank upto the tune of Rs.9,53,

078. Against the aforesaid ex parte decree appellant admittedly, without serving notice, has filed the instant appeal. The point relating to service of notice goes to the route of the case, therefore, it looks appropriate to resolve the same first. Before embarking upon the aforesaid preliminary objection it seems appropriate to reproduce section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 which speaks as under-- "

22. Appeal. (1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court. (2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing. (3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant: Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the decree-holder has been given an opportunity of being heard and unless the appellant deposits in case with the High Court an amount equivalent to the decretal amount inclusive of costs, or in the case of an appeal other than an appeal against an interim decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decretal amount only, the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly. (4) An appeal under subsection (1) shall be heard by a bench of not less than two Judges of the High Court and, in case the appeal is admitted, it shall be decided within 90 days from the date of admission. (5) An appeal may be preferred under this section from a decree passed ex parte. (6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19. (7) Any order of stay of execution of a decree passed under subsection (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder may enforce the security furnished by the Judgment debtor." Similarly Order XLIII, Rule 3 of the Code of Civil Procedure, 1908, is essential to be reproduced which reads as under:-- "

3. Notice before presentation of appeal.

(1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against either personally or through registered post acknowledgment due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court. (2) On receipt of notice referred to in sub-rule (1), the respondent may, with, the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine." A bare reading of subsection (2) of section 22 of Financial Institutions (Recovery of Finances) Ordinance 2001, makes it abundantly clear that before filing an appeal notice under Order XLIII, Rule 3 of the Code of Civil Procedure, 1908, is mandatory and condition precedent to exercise appellate jurisdiction. The failure to serve notice has rendered the appeal incompetent, hence, is liable to be dismissed. No any reason has been advanced by appellant for non-serving of notice. The appeal is, therefore, against basic provisions of statutory law, thus, not maintainable.

7. The nub of the above discussion is that preliminary objection raised by the learned counsel for respondent is prevailed and the instant appeal is accordingly dismissed. However, due to peculiar facts of the case parties shall bear their own costs. ZC/38-HC(AJK) Appeal dismissed.