2018 PLP 1253 (CLD)
AYESHA JAVID alias AISHA ALTAF — Appellant Versus ASKARI BANK LIMITED — Respondent
| Citation | 2018 PLP 1253 (CLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | AYESHA JAVID alias AISHA ALTAF — Appellant Versus ASKARI BANK LIMITED — Respondent |
| Primary Law | Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) |
Q1: What are the key laws and sections cited in 2018 PLP 1253 (CLD)?
This judgment primarily cites: Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP 1253 (CLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP 1253 (CLD) (AYESHA JAVID alias AISHA ALTAF — Appellant Versus ASKARI BANK LIMITED — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----S. 12---Civil Procedure Code (V of 1908), S. 12(2)---Ex parte judgment and decree, setting aside of---Fraud and misrepresentation---Principle---Defendant raised plea of fraud and misrepresentation and denied having executed any power of attorney in favour of advocate who appeared in the Court on her behalf---Banking Court declined to set aside ex parte judgment and decree passed against defendant---Validity---Grounds for filing application for setting aside ex parte judgment and decree were that the same was obtained on the basis of fraud and misrepresentation---If fraud was alleged in application for setting aside ex parte judgment and decree, its necessary ingredients must be pleaded, so as to subsequently prove the same---Mere general and bald allegations of fraud and misrepresentation could not form basis to upset a decree otherwise validly passed by Court of competent jurisdiction---Defendant failed to prove fraud and misrepresentation by plaintiff bank for obtaining judgment and decree in question against her, as the same was passed on the basis of banking documents appended with plaint including finance agreement etc.---High Court declined to interfere in ex parte judgment and decree, and Banking Court had rightly dismissed application for setting aside ex parte judgment and decree filed by defendant and there was no illegality or perversity in the order and the same was passed in accordance with law---Appeal was dismissed in circumstances.
- 2. Learned counsel for the Appellant inter alia submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while dismissing the application of the Appellant; that the impugned order is against law and facts; that the Appellant has never signed on the Wakalatnama of Mr. Khaliq Dad, Advocate who pleaded the case on her behalf without any authorization; that there is much difference between the signatures of the Appellant on the power of attorney as well as on the petition for leave to Appeal; that the Banking Court has not taken into consideration the fact that no proper service of summons was ever made upon the Appellant; that the Appellant remained unheard and a decree of heavy amount, which otherwise is not proved, has been passed against her, as such the ex parte judgment and decree is against the principle of natural justice; that if the impugned order is not set aside the Appellant shall suffer an irreparable loss.
- 4. The perusal of record reveals that the judgment and decree was passed against the Appellant on 20.02.2017. It was clearly mentioned in the judgment and decree that the Appellant moved application for leave to defend the suit raising certain objections on legal as well as factual side. The said application is also part of the record. The main contention of the Appellant is that neither she was properly served upon personally nor the application for leave to defend was ever filed by her and that too the signatures on the power of attorney allegedly filed by Ch. Khalid Dad Warraich, Advocate on her behalf are also fake and fabricated. The whole record does not show that the Appellant has ever filed any complaint against the said lawyer (Ch. Khalid Dad Warraich, Advocate) i. for submission of power of attorney on her behalf ii. for fake signatures and iii. for filing of application for leave to defend without her permission despite the fact that a decree of heavy amount has been passed against her. Moreover, the Appellant's contention regarding service of summons also does not have any weight because the Banking Court has observed in the impugned order that infact two separate suits were filed by the Respondent i.e. one against her and the other against her husband and the said lawyer contested both the said suits on their behalf. Nothing is on the record which could show that at the time of service of summons there is separation between the husband and wife.
Headnotes / Summary
S. 12
Civil Procedure Code (V of 1908), S. 12(2)
Ex parte judgment and decree, setting aside of
Principle
Defendant raised plea of fraud and misrepresentation and denied having executed any power of attorney in favour of advocate who appeared in the Court on her behalf
Banking Court declined to set aside ex parte judgment and decree passed against defendant
Grounds for filing application for setting aside ex parte judgment and decree were that the same was obtained on the basis of fraud and misrepresentation
If fraud was alleged in application for setting aside ex parte judgment and decree, its necessary ingredients must be pleaded, so as to subsequently prove the same
Mere general and bald allegations of fraud and misrepresentation could not form basis to upset a decree otherwise validly passed by Court of competent jurisdiction
Defendant failed to prove fraud and misrepresentation by plaintiff bank for obtaining judgment and decree in question against her, as the same was passed on the basis of banking documents appended with plaint including finance agreement etc.
High Court declined to interfere in ex parte judgment and decree, and Banking Court had rightly dismissed application for setting aside ex parte judgment and decree filed by defendant and there was no illegality or perversity in the order and the same was passed in accordance with law
Appeal was dismissed in circumstances.
Judgment & Decree
Through the instant Appeal, filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellant seeks setting aside of order dated 14.03.2018, passed by the Banking Court, Sargodha (the "Banking Court") whereby his application for setting aside ex parte judgment and decree was dismissed.
2. Learned counsel for the Appellant inter alia submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while dismissing the application of the Appellant; that the impugned order is against law and facts; that the Appellant has never signed on the Wakalatnama of Mr. Khaliq Dad, Advocate who pleaded the case on her behalf without any authorization; that there is much difference between the signatures of the Appellant on the power of attorney as well as on the petition for leave to Appeal; that the Banking Court has not taken into consideration the fact that no proper service of summons was ever made upon the Appellant; that the Appellant remained unheard and a decree of heavy amount, which otherwise is not proved, has been passed against her, as such the ex parte judgment and decree is against the principle of natural justice; that if the impugned order is not set aside the Appellant shall suffer an irreparable loss.
3. We have heard the arguments and perused the record.
4. The perusal of record reveals that the judgment and decree was passed against the Appellant on 20.02.2017. It was clearly mentioned in the judgment and decree that the Appellant moved application for leave to defend the suit raising certain objections on legal as well as factual side. The said application is also part of the record. The main contention of the Appellant is that neither she was properly served upon personally nor the application for leave to defend was ever filed by her and that too the signatures on the power of attorney allegedly filed by Ch. Khalid Dad Warraich, Advocate on her behalf are also fake and fabricated. The whole record does not show that the Appellant has ever filed any complaint against the said lawyer (Ch. Khalid Dad Warraich, Advocate) i. for submission of power of attorney on her behalf ii. for fake signatures and iii. for filing of application for leave to defend without her permission despite the fact that a decree of heavy amount has been passed against her. Moreover, the Appellant's contention regarding service of summons also does not have any weight because the Banking Court has observed in the impugned order that infact two separate suits were filed by the Respondent i.e. one against her and the other against her husband and the said lawyer contested both the said suits on their behalf. Nothing is on the record which could show that at the time of service of summons there is separation between the husband and wife.
5. The grounds for filing application for setting aside the said ex parte judgment and decree were that the ex parte judgment and decree has been obtained on the basis of fraud and misrepresentation. It is well settled principle that if fraud is alleged in an application for setting aside ex parte judgment and decree, its necessary ingredients must be pleaded, so as to subsequently prove the same. Mere general and bald allegations of fraud and misrepresentation, could not form basis to upset a decree, otherwise validly passed by a Court of competent jurisdiction. From the material made available with this file, no case for interference in the impugned order is made out. The Appellant has failed to prove the fraud and misrepresentation by the Respondent Bank for obtaining impugned judgment and decree against her. It is evident from the record that the judgment and decree was passed on the basis of banking documents appended with the plaint including the finance agreement etc. In Ireno Wahab v. Lahore Diocesan Trust, (2016 CLC Note 85) this Court held that Applicant was required to prove that fraud and misrepresentation was procured during proceedings in the court; that alleged fraud was due to false statement and concealment of facts and that judgment was obtained on the basis of forged documents and decree was collusively obtained. The Applicant had not proved the ingredients of fraud and misrepresentation. Reliance is placed on Mst. Nasir Khatoon's case (2003 SCMR 1050) and Dadabhay Cement's case (PLD 2002 SC 500). Reliance in this regard can also be placed on the case titled Riaz Ahmed v. Bank of Punjab (2016 C L D 596) in which the Division Bench of this Court held that the application filed under section 12(2), C.P.C. did not mention any particulars constituting fraud and misrepresentation on the part of respondent bank in obtaining the judgment and decree from the Banking Court. The fact that the respondent bank had applied to the insurance company for realization of the insurance claim had no bearing on the recovery suit filed by it against the appellants which was only concerned with the determination of liability against the appellants. It is also not necessary for a Court to always prove issues on an application filed under section 12(2), C.P.C. more so when the particulars of fraud and misrepresentation are missing.
6. We agree with the findings of the Banking Court which rightly dismissed the application for setting aside of ex parte judgment and decree filed by the Appellant and do not see any illegality or perversity in the impugned order which has been passed strictly in accordance with law, as such does not warrant any interference by us. Consequently, the Appeal in hand, being devoid of any merit, is hereby dismissed in limine. MH/A-38/L Appeal dismissed.