2006 PLP 1213 (CLD)

MIAN HAMID FAROOQ, J.

Present appeal proceeds against order dated 5-12-2005, whereby the learned Judge Banking Court dismissed appellant's application seeking restoration of his application for recalling ex parte decree dated 27-10-2003.

2. Respondent-Bank's suit for recovery of Rs.1,16,367 was ex parte decreed, against Messrs Shahira Industry through the appellant, by the learned Judge Banking Court, vide judgment and decree dated 27-10-2003. The appellant, on 29-3-2005, filed the application seeking setting aside of ex parte decree dated 27-10-2003 (parent application), which itself was dismissed for non-prosecution, on 22-2-2005. The appellant, then instituted the application for restoration of his parent application, which application was resisted by the respondent-Bank and ultimately the learned Judge Banking Court dismissed appellant's said application, vide impugned order dated 5-12-2005, hence the present appeal.

3. Learned counsel contends that appellant's restoration application was illegally dismissed on the ground that it was filed beyond the period of 30 days, while the limitation period for filing an application for the restoration of application seeking restoration of the suit is governed by Article 181 of the Limitation Act, therefore, the said application could be filed within a period of three years. He has relied upon Ahmad Ali v. Registrar, Co-operative Societies PLD 1971 Karachi 182; Muhammad Khan v. Additional District Judge and 2 others PLD 1985 Peshawar 8 and Ajab Khan and another v. Inayatullah Khan and others 1981 CLC

54. Conversely the learned counsel for the respondent-Bank has supported the impugned order and states that no sufficient cause was shown for the restoration of appellant's application.

4. We have heard the learned counsel and examined the available record. Upon the perusal of the impugned order, we find that appellant's application for the restoration of his parent application was dismissed primarily on the ground of limitation, though some findings are forthcoming on the merits of the case as well. Firstly coming to the question as to whether appellant's restoration application was barred by time. The parent application was dismissed on 22-2-2005 and appellant filed the application for its restoration on 29-3-2005 i.e. after 35 days of the dismissal of the parent application. The contention raised by the learned counsel regarding period of 3 years for filing such type of application is fully supported by the judgments relied upon by him, wherein, it has, inter alia, been held that the second application for restoration of previously dismissed application would be governed by Article 181 of the Limitation Act, which provides a period of three years, as there is no other express provision of law providing period of limitation for filing such-like application. The learned counsel for the respondent could not present any judgment, wherein, the contrary view was taken. We are in respectful agreement with the principles of law laid down in the aforesaid judgments and of the view that the application for restoration of the application for revival of suit or setting aside the ex parte decree would be governed by Article 181 of the Limitation Act. In view whereof, the application filed by the appellant on 29-3-2005 for the restoration of parent application was within time and the view taken by the learned Banking Judge is erroneous, thus cannot be maintained.

5. As regards the findings of the learned Judge Banking Court on the merits of the application, suffice it to say that those are casual, cursory and not in consonance with the record of the case. We find from the record that appellant's latest application was supported by the affidavit of the appellant, while there was no counter affidavit by the respondent-Bank. At least there was no rebuttal to the affidavit of the appellant and the said fact coupled with other circumstances are sufficient to accept appellant's restoration application. In these circumstances, we are persuaded to reverse the findings of the learned Banking Judge.

6. In the above perspective, we have examined the impugned order and are of the firm view that the same is not according to law. Thus we are inclined to set it aside and restore appellant's parent application.

7. For the foregoing reasons, present appeal is decided in the following terms:-- (i) The appeal is accepted and order dated 5-12-2005 is set aside; (ii) Resultantly, appellant's application for restoration of the parent application is allowed and the application seeking setting aside ex parte decree is restored to its original number; (iii) The said application shall be deemed to be pending before the learned Judge Banking Court, who shall decide the same after hearing the parties and of course in accordance with law. (iv) No order as to costs. S.A.K./N-62/L Order accordingly.