2003 PLP 898 (CLD)

Sardar Muhammad Hayat for Respondents. Appellant/ plaintiff, through the filing of the present appeal, has called in question orders dated 4-12-2001 and 10-12-2001, whereby appellant's suit was dismissed for non-prosecution and his application for the restoration of the suit was also rejected, respectively.

2. Precisely stated, the facts leading to the filing of the present appeal are that the appellant filed a suit for declaration and permanent injunction, against the respondents, wherein, after the completion of service, respondent No. 1 filed an application for leave to defend the suit, while the other respondents were proceeded ex parte. The appellant contested the said application and the case was adjourned to 4-12-2001 for addressing arguments on the application, on which date the learned Court after finding, that nobody represented the appellant dismissed the suit for non-prosecution. On 6-12-2001 the appellant filed an application under Order IX, rule 9, C.P.C, for the restoration of the suit, but the learned Banking Court dismissed the said application, even without calling upon the respondents, vide order dated 10-12-2001, hence the present appeal assailing the aforenoted two orders.

3. Nobody represented the legal heirs of respondent No.2, hence they are proceeded ex parte.

4. Learned counsel for the appellant has contended that both the impugned orders are not sustainable in law as the same were passed in complete oblivion of the facts of the case and law on the subject. Conversely, learned counsel for respondents, while supporting both the orders, has prayed for the dismissal of the appeal.

5. Upon the examination of the record, we find that on 13-11-2001, reply, on behalf of the appellant to an application for leave to defend the suit, was filed and the case was adjourned to 4-12-2001 for addressing arguments on the said application, but on the next date of hearing, the suit, itself, was dismissed for non-prosecution. It is evident from order dated 13-11-2001 that the main suit was not fixed for hearing on 4-12-2001 and- it was only the leave application, which was listed for hearing on 4-12-2001, thus, on the said date, the suit was not on the cause-list of the learned Banking Court. Although it has been pleaded by the learned counsel for the appellant that when the counsel for the appellant appeared before the Banking Court, he was told that arguments have been heard and the case is fixed for orders, yet notwithstanding the said assertion, it has been proved on record, as noted above, that the suit was not fixed for "hearing" on ,4-12-2001. If the appellant or his learned counsel was absent on 4-12-2001, at the best, the learned Banking Court could have accepted the application for leave to defend the suit but, in no way, was competent to dismiss the suit on the said date, as the suit was not fixed for hearing. The said date was not a "date of hearing" as contemplated under the law, thus, the suit could not have been dismissed for non-prosecution. Learned Banking Court, did not advert to this basic aspect of the case and proceeded to mechanically pass the order dated 4-12-2001, which, to our mind, is not sustainable in law, as the same has been passed without taking into consideration the law on the subject.

6. Now coming to the order dated 10-12-2001, we find from the record that in support of the application for the restoration of the suit, the learned counsel for the appellant has filed his own affidavit, but the learned Banking Court did not at all take into consideration the said affidavit, against which there was no rebuttal and the said affidavit stood uncontroverted. The learned Court even did not consider the plea, raised by the appellant, for the absence of his learned counsel, who was, statedly, busy in r this Court, and in support of that assertion he filed his own I affidavit. Even if the appellant was not able to produce his medical certificate, the suit could have been restored on the ground of pre-occupation of his learned counsel: We are of the firm view that this order is not even sustainable in law, as the same was passed in complete ignorance of the record of the case and law on-the I subject.

7. In the above perspective, we have examined both the orders and are of the view, as noted above, that those are not sustainable, thus, we are inclined to set aside both the orders.

8. Upshot of the above discussion is that the present appeal is allowed and orders dated 4-12-2001 and 10-12-2001 are set aside with no order as to costs. The result would be that the suit titled "Muhammad Aslam v. A.D.B.P. and others", filed by the appellant, shall be deemed to be pending before the learned Judge Banking Court, who shall, at the first instance, decide the application for leave to defend the suit, filed by the appellant, and thereafter shall proceed to decide the suit, of course, in accordance with law. M.H./M-1599/L Case remanded