Sheikh MUHAMMAD KASHIF vs ASKARI LEASING LIMITED through Manager/

ORDER

' The plaintiff/appellant, through the filing of the present appeal has called in question judgment dated 9-1-2003 and order dated 18-1-2003, whereby Judge, Banking Court rejected the plaint, in a suit for permanent injunction, filed by the appellant, and dismissed appellant's review application, respectively.

2. Brief facts leading to the filing of the present appeal are that the appellant filed a suit for permanent injunction, along with an application under Order XXXIX, Rules 1 and 2, C.P.C., before the learned Judge Banking Court, praying for passing a restraint order against the respondent from illegally snatching the car from the appellant. Pursuant to the issuance of summons, as required under section 9(5) of the Financial Institutions {Recovery of Finances) Ordinance, 2001, the respondent-Bank filed an application seeking leave to defend the suit, which was resisted by the appellant, however, ultimately, the learned Judge Banking Court, instead of deciding the said application, one way or the other, proceeded to reject the plaint in purported exercise of jurisdiction under Order VII, Rule 11, C.P.C., vide judgment dated 9-1-2003. Subsequently the appellant filed a review application and the learned Banking Court after calling for reply from the respondent proceeded to dismiss the same vide order dated 18-1-2003, hence, the present appeal.

3. Learned counsel for the appellant has contended that the learned Judge Banking Court, while hearing the application for leave to defend the suit, could not have legally rejected the plaint. He has further submitted that the impugned judgment and subsequent order were passed in complete oblivion of the facts of the case and the law on the subject. Conversely, the learned counsel for the respondent has supported the impugned judgment/order.

4. Upon the examination of the record of the case and perusal of the impugned judgment, we find that the approach of the learned Banking Court, to say the least, in rejecting the plaint, is perfunctory, contrary to record and violative of law. To our mind the learned Banking Court has, in fact, overstepped the scope of section 10(8) of the aforesaid Ordinance. Admittedly, the respondent filed an application seeking leave to defend the suit, which was to be decided by the learned Judge Banking Court either way. In view of section 10(8) of the Ordinance, 2001, the learned Judge Banking Court shall grant the leave to defend the suit, if it finds that the substantial questions of law and facts have been raised, in respect of which evidence needs to be recorded. It is pertinent to note here that section 10 of the aforenoted Ordinance, which deals with the application of leave to defend the suit, does not provide A that while hearing such an application the learned Judge Banking Court has been empowered to straightway reject the plaint. There cannot be any cavil to the proposition that the Banking Courts, which are established under section 5 of Ordinance, 2001, are the creature of Statute and, of course, are bound by the provisions of the said Statute. If the learned Banking Court was of the view that substantial questions of law and facts have been raised by the respondent, then, at last leave to defend could have been granted to the respondent but to our mind, no way, at that point of time, either the suit or the plaint could have been dismissed/rejected, as has been done in the present case. While deliberating upon the similar issue, the Honourable Sindh High Court in a case reported as Messrs Platinum Insurance Company through Chief Executive v. Messrs Highways Bridge, Contractor International (Pvt.) Ltd.

And another 1997 M LD 2394 has held as under:-- .... 0 .XXXVII, Rule 3---Suit in summary jurisdiction---Court before grant of leave to defend suit could neither dismiss suit, nor reject plaint, nor pass any adverse order against plaintiffs on objection/assertions of defendant---Such question, however, could be considered at final hearing of suit---No case was made out for grant of conditional leave---Defendants were, however, granted leave to defend suit subject to furnishing bank guarantee in. Suit amount within specified period."

5. Another factor, which has persuaded us to accept this appeal is that on the date of the rejection of the plaint, the suit was not "fixed for hearing" and instead thereof only the application for leave to defend the suit was fixed before the Court for arguments. It is clearly borne out from the perusal of the order-sheet that the suit was never fixed for hearing and the entire proceedings from the very inception were undertaken by the learned Banking Court on the application for leave to defend the suit. As the suit was not fixed for "hearing" on 9-1-2003, therefore, the learned Banking Court could not have rejected the plaint, as has erroneously been done in the present case. As noted above, the learned Banking Court, at the maximum, could have granted leave to defend the suit to the respondent and thereafter decided the case in accordance with law. Undoubtedly after the grant of leave to defend and treating the leave application as written statement, the respondents are within their right to have filed an application under Order VII, Rule 11, C.P.C. And if the Court reaches the conclusion that the case falls under any of the clauses of Order VII, Rule 11, C.P.C. Of course, plaint could have been rejected, but in no way before the grant of leave to defend the suit.

6. In the above perspective we have examined the impugned judgment and find that same is in clear conflict with the express provisions of Ordinance, 2001, thus, we are inclined to interfere in the said judgment and subsequent order as well.

' Upshot of the above discussion is that the present appeal is allowed, the impugned judgment dated 9-1-2003 and order dated 18-1-2003, are set aside with no order as to costs. The result would be that the suit filed by the appellant titled "Sheikh Kashif Zia v. Askari Leasing Limited" as well as leave application shall deem to be pending before the learned Judge Banking Court, which,' shall at the first instance decide the application for leave to defend the suit in accordance with law and thereafter to decide the suit after providing sufficient of hearing to the parties and, of course, in accordance with law.