2002 PLP 988 (CLD)

The brief facts out of which the present appeal arises are that the respondent Bank filed suit for recovery amounting to Rs.835,062 before the Banking Court, Gujranwala. The predecessor‑in‑interest of appellants Nos.l and 2 filed application for leave to defend. The remaining appellants/defendants who are real beneficiaries did not file any application for leave to defend the suit. The learned Banking Court decreed the suit vide judgment and decree, dated 3‑10‑2000. The appellants being aggrieved filed this appeal on 7‑4‑2001 alongwith an application for condonation of delay.

2. Learned counsel of the appellants submits that predecessor‑in‑interest of appellants Nos. l and 2 had taken definite stand in their application for leave to defend that their property was not mortgaged with the respondent‑Bank. Learned Banking Court dismissed their application without applying his independent mind merely on the ground that real beneficiaries did not file any application for leave to defend. Therefore, learned Banking Court was erred in law to dismiss their application. In fact appellants Nos. l and 2 were not given proper opportunity to defend their case. Learned counsel of the respondent raised the following preliminary objections:‑‑‑ (i) The decree was passed after hearing the arguments of the Advocate of the legal heirs of appellants Nos. 1 and 2 (ii) The appellants have not furnished sufficient cause for condonation of delay as the appellants have to explain delay of each day. (iii) Appellants Nos.3 to 6 did not file any application for leave to defend before the Banking Court. Therefore, they have no right under the law to file present appeal. (iv) Present appeal is only signed by one of the legal heirs of appellant No. l namely Muhammad Hanif. (v) Power of attorney is also signed by Muhammad Hanif. Therefore, no valid appeal has been instituted before this Court by appellants Nos.2 to

6. Learned counsel for the appellants in rebuttal submits that legal heirs of appellants Nos. 1 and 2 were under the impression that their names were struck off from the arena of defendants by the Banking Court. The appellants came to know about the decree after receiving notice from the executing Court. He further submits that superior Courts insisted that cases be decided on merits instead of technicalities.

3. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. It is pertinent to mention here that application for leave to defend the suit was filed on behalf of the legal heirs of appellants Nos.1 and 2 before the Banking Court. The property in question was mortgaged with the respondent Bank as is evident from para.20 of the plaint which is duly supported by documents whereas the application for leave to defend does not contain any document to show that the same was not mortgaged with the respondent‑Bank. It is also admitted fact that real beneficiaries did not file any application for leave to defend till the decree was passed by the Banking Court. Therefore, trial Court has no option except to pass a decree against the beneficiaries as per law laid down by the Honourable Supreme Court in Messrs Ahmad Autos v. Allied Bank of Pakistan (PLD 1990 SC 497). It is pertinent to mention here that legal heirs of appellants Nos. 1 and 2 had pursued the case throughout before the Banking Court and the decree was admittedly passed by the Banking Court on 3‑10‑2000. The appellants filed an application for obtaining certified copy on 2‑4‑2001. It is settled principle of law that it is the duty and obligation of the appellant to explain the delay of each day but the appellants had filed an application for obtaining certified copy of the impugned judgment when the same had become already time‑barred. In view of what has been discussed above we do not find any illegality or infirmity in the impugned judgment and decree. Therefore, the same is dismissed as time -barred as well as on merits. S.A.K./M‑1007/L Appeal dismissed.