2005 PLP 451 (CLD)

Syed Waqar Hussain Naqvi for Appellants. Hassan Nawaz for Respondent. Muhammad Ashraf Reader and Muhammad Iqbal Wahla Ahlmad Bank with Record. Date of hearing: 13th December, 2004. MIAN SAQIB NISAR, J.‑‑‑The respondent‑Bank brought a suit for the recovery against the appellants, which was earlier ex parte decreed on 23‑3‑2003; the appellant moved an application under section 12(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, for the setting aside of the decree, which application after contest was accepted and as per law, the appellants were required to file the leave application within ten days; the case for the pronouncement of the order on this application, though was fixed for 19‑11‑2003, but according to the learned counsel for the appellant, for certain reason, file was kept by the learned' Presiding officer till 2‑12‑2003, when he signed the judgment and the copy of the order thereafter delivered to the appellant, who has applied for the certified copy of the order since 19‑11‑2003. Therefore, the appellants filed the leave application within ten days of the said date. But it has been rejected by the learned Court below, on the ground that it is ‑ barred by time, being beyond ten days of the order dated 19‑11‑2003.

2. It has been emphatically argued that had the order was not announced on 19‑11‑2003, as it was not signed the same day, and the Presiding Officer, cleared the file on 2‑12‑2003 and therefore the time shall run from that date.

3. In order to verify, if the plea taken by the appellants is correct, we had summoned the record of the Banking Court, which has been produced by the Ahlmad but unfortunately it is not of much assistance to us. The Ahlmad is unable to answer and to even produce any record, to apprise us, as to when the file was received by him, enabling the appellants to obtain a copy of the said order, which he had earlier applied. The possibility therefore, cannot be ruled out that the Judge, though has fixed the case for pronouncement of the order on 19‑11‑2003, but might have dictated the order subsequently and signed the same on 2‑12‑2003, only whereafter, the copy was supplied to the appellants the next date. Anyhow, we in the circumstances, are not inclined to hold an inquiry, which may include the recording of the statement of the Presiding Officer and also the other staff of the Court. But by applying the rule of probability, that as appellants had applied for the copy on the next date i.e. 20‑11‑2003, which was supplied to them on 2‑12‑2003. Thus it is from that date, they learnt about the acceptance of their application, therefore, the time for filing of the leave application shall commence from that date. We hold that the application of the appellant was within time and therefore, the impugned order is liable to be set aside. However, the appellants have been somewhat negligent in this behalf, because they could have approached the Judge, through their counsel, to know about the fate of their application. Resultantly, in the, circumstances, we impose upon them a costs amounting to Rs.10,000, which as conceded by the learned counsel for the respondent, should be deposited by the appellants with Shaukat Khanum Memorial Hospital. Resultantly, the impugned order rejecting the leave application of the appellants, as being barred by time, and the judgment and decree passed thereafter, are set aside; the case is remanded to the Banking Court, to consider the leave application as pending and to decide the same in accordance with law within a period of two months, from the date of first appearance of the parties, who are directed to appear before the Court on 25‑12‑2004. M. B. A. / B‑60 / L Order accordingly.