2003 PLP 531 (CLD)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.IX, R.2‑‑‑Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs‑‑‑Imposition of penalty prescribed under O.IX, R.2, C.P.C. rested in the discretion of the Court which was to be exercised only in case of grave injustice and not in routine. Mrs. Aneeqa Mughees for Appellant. Nemo for Respondents. Date of hearing: 20th November, 2002. CH. IJAZ AHMAD, J.‑‑‑The brief facts out of which the present appeal arises are that the appellant filed a suit for recovery amounting to Rs.14,41,220 against the respondents before the Banking Judge, Lahore High Court; Lahore. Subsequently, the law was amended and the case was transferred to Banking Court No.2, Lahore on 14‑10‑1992. The Banking Court sent notices to the parties vide order dated 21‑12‑1992 for 10‑2‑1993. The Presiding Officer was on leave on 10‑2‑1993 and the case was adjourned for 2‑5‑1993. Learned Banking Court issued notice to the respondents at the cost of the appellant for 7‑6‑1993. The appellant was directed to deposit the expenses of Talbana within a week. The said order was repeated by the Banking Court till 4‑12-1993. The appellant failed to deposit the process fee within prescribed period i.e. 3 days in view of order dated 4‑12‑1993 and the case was adjourned to 7‑2‑1994. The Banking Court dismissed the suit as the appellant failed to deposit the process fee vide order dated 9‑4‑1994. The appellant being aggrieved filed an application for setting aside the said order before the Banking Court which was dismissed on 7‑11‑1995. The appellant being aggrieved filed this appeal.

2. Despite substituted service respondents failed to enter appearance. Hence ex parte order is passed against them.

3. Learned counsel for the appellant submits that case was transferred by the Banking Judge of Lahore High Court to the Banking Court No.2, Lahore. Therefore, it was the duty and obligation of the Banking Court to issue notice to the parties. Learned Banking Court issued notice to the parties on 21‑12‑1992 but the service of the respondent was not effected. Therefore, appellant should not be penalized by the act of the Court. She further submits that impugned order is very harsh and therefore, impugned orders of the Banking Court are not sustainable in the eyes of law. She further submits that Rules are meant to facilitate the interest of justice and not to frustrate the intent of law. She further submits that superior Courts insist that cases must be decided on merits instead of technicalities. In support of her contention she relied upon the following judgments:‑‑ (1) Aziz Ullah Khan etc. v. Arshad Hussain etc. (PLD 1975 Lahore, 879). (2) Rehmat Ali v. Fazal Hussain (1990 CLC 761).

4. We have considered the contentions of the learned counsel for the appellant and perused the record.

5. It is admitted fact that case was transferred by the Banking Judge of this Court to the Banking Court No.2 Lahore on 14‑10‑1992. Learned Banking Court sent notice to the parties for 10‑2‑1993. It is pertinent to mention here that service of the respondent was not effected in terms of the notice issued by the Court. When the notice is issued by the Court then the appellant has not to deposit the process fee. Therefore, the subsequent orders passed by the Banking Court after 21‑12‑1992 for issuance of notice to the respondents/ defendants with a direction to the appellant to deposit process fee are not valid on the well known principle of law that nobody should be penalized by the act of the Court. In arriving to this conclusion we are fortified by the law laid down by a Division Bench of this Court in Mian Irshad Ali v. Government of Pakistan (PLD 1975 Lahore 7). It is also settled principle of law that when the basic order is not sustainable in the eyes of law then superstructure shall have to fall on the ground. In arriving to this conclusion we are fortified by the law laid down by this Court in Crescent Sugar Mills v. Central Board of Revenue (PLD 1982 Lahore 1). It is pertinent to mention here that the last order was passed by the Banking Court to deposit process fee within 3 days which is unwarranted in law. In arriving to this conclusion we are fortified by the law laid down by this Court in Ghaus Muhammad v. Nur Muhammad (PLD 1965 Lahore 685). It is also settled principle of law that provision of this rule i.e. Order IX (2) being not of imperative nature therefore, rigid application thereof is not warranted. Meaning thereby Court is not bound to pass order of dismissal as per principle laid down by the Honourable Supreme Court in Shamroze Khan v. Muhammad Amin (PLD 1978 SC 89). It is also settled principle of law that imposition of penalty prescribed under aforesaid order of Civil Procedure Code rests in the discretion of the Court which is to be exercised only in case of grave injustice and not in routine. In view of what has been discussed above, this appeal is accepted, the impugned orders of the Banking Court are set aside and the case is remanded to the Banking Court with a direction to proceed in the matter in accordance with law after issuing notice to the respondents/ defendants. The appellant is directed to, appear before the Banking Court on 12‑12‑2002. No order as to costs. M.B.A./M‑1588/L Appeal accepted.