MUSLIM COMMERCIAL BANK LIMITED vs TARIQ SAEED and another

' SYED JAMSHED ALI, J.---The order dated 25-7-1995 of the learned Presiding Officer of the Banking Court dismissing the application of the appellant for restoration of the suit has been called in question in the present appeal which arises out of the following circumstances.

2. In the suit filed by the appellant for recovery of an amount of Rs.1,23,440, issues were framed on 10-2-1994 and the suit was posted for evidence of the plaintiff on 25-4-1994 and was then adjourned to 13-7-1994. The suit was filed through Kanwar Saeed Ahmad, Advocate. On 13-7-1994, Mr. Arshad Khan, Advocate appeared for the plaintiff-Bank and it was adjourned for 1-11-1994. On the said date, nobody appeared for the plaintiff/appellant on which the suit was dismissed for non-production of evidence. On 2-11-1994 an application for restoration was filed through Kanwar Saeed Ahmad, Advocate with the averment that on 13-7-1994 next date of hearing was noted as 2- 11-1994 and, therefore, default of 1-11-1994 was sought to be condoned. During the hearing of that application, an affidavit of Mr. Arshad Khan, Advocate was also filed. The application for restoration of the suit was, however, dismissed.

3. The learned counsel for the appellant submits that the date of hearing was wrongly noted as 2- 11-1994, the application for restoration was promptly filed and there was no rebuttal to the affidavit filed alongwith the application or the affidavit filed by Mr. Arshad Khan. He submits that unless technicalities offer in surmountable hurdles , these could not be allowed to defeat the ends of justice. Reliance is being placed on Ghulam Qasim v. Ghulam Hussain PLD 1992 SC 577 and Bahadar v. Jamat Ali and 6 others 1999 M LD 2429.

4. On the other hand, the learned counsel for the respondents submits that in the application made for restoration of the suit, it was wrongly stated that the learned counsel had wrongly noted 2-11- 1994 as the next date of hearing because the application was filed through Kanwar Saeed Ahmad, Advocate, who had not appeared on 13-7-1994 and thus, the plaintiff/appellant failed to substantiate the contents of the application. It is next submitted that in the circumstances, the affidavit of Muhammad Arshad Khan could not either be accepted, a plaintiff is not entitled to the rehearing of the case on merits according to his wishes and that no sufficient cause was disclosed for seeking restoration of the suit.

5. The submissions made by the learned counsel for the parties have been considered. The application for restoration was promptly made on 2-11-1994 and the affidavit of Muhammad Arshad Khan was not even controverted. There is merit in the submission that technicalities should not be allowed to defeat the ends of justice. The suit was dismissed at the initial stage and in the absence of rebuttal to the affidavit of Mr. Arshad Khan, Advocate sufficient cause was disclosed for restoration of the suit. Accordingly, we allow this appeal, set aside the order dated 25-7-1995 and direct restoration of the suit which shall now be heard on merit. No order as to cost.