UNITED BANK LIMITED vs Messrs KHAWAJA RADIO HOUSE through Proprietor

ORDER

' The appellant filed a suit for recovery against the respondents in the Banking Court, on which, notice was issued to the respondent, who moved an application for grant of leave to appear and defend the suit. Reply was filed by the appellant and the case was fixed for hearing of arguments on this application when the appellant and his counsel could not appear on 31-5-2001, therefore, the suit was dismissed for non-prosecution. Immediately, the next day, the appellant moved an application for restoration of the suit, which remained pending for a considerable time and has been disallowed vide order dated 23-4-2002.

2. Learned counsel for the appellant contends that suit was not fixed for hearing. It is only application for grant of leave to appear and defend the suit which was fixed for arguments on 31- 5-2001 and at the most, the Court while proceeding ex parte in such application against the appellant, should have allowed the same, therefore, dismissal of the suit was unwarranted and without lawful authority.

3. Learned counsel for the respondent, however, has raised a preliminary objection that the present 'appeal is incompetent, because impugned order is not appealable within the purview of section 22 of the Financial Institution (Recovery of Finances) Ordinance, 2001, besides, that under subsection (2) of section 22 of the said Ordinance, the appellant was required to give a notice to the respondent in terms of Order 43 before the filing of the appeal which was not given, lastly, that appeal against the judgment and decree dated 31-5-2001 is barred by time.

4. We have heard the arguments of learned counsel for the parties and find that the suit was not fixed for hearing on 31-5-2001. It is only application for grant of leave to appear and defend the suit which was fixed and at the most the. Court could have allowed the application of the respondent in absence of the appellant, therefore, very dismissal of the suit is without jurisdiction. The second submission, that no appeal is competent against the order dated 31-5-2001, suffice it to say, that through the impugned order the application of the appellant seeking restoration of the suit has been dismissed and such order being a final order of the Banking Court falls within the scope of section 22, the appeal is, therefore, very much competent. For third submission, that the appeal is not maintainable for lack of notice under Order 43, C.P.C, it istheld that due to lack of notice, no prejudice is shown to have been caused to the respondent, even otherwise, the requirement of notice is, directory and not mandatory, as no consequences have been provided entailing the dismissal of the appeal of that account. The next submission, that the appeal is barred by time against the original judgment and decree dated 31-5-2001, it may be stated that this appeal is being treated not an appeal against the original judgment and decree, rather, against the order dated 23-4-2002 whereby, the application of the appellant seeking restoration of the suit was dismissed and it is not time-barred qua such order, therefore, the objection is repelled.

5. Thus for the reason, that the suit was not fixed for hearing on 31-5-2001 and could not be dismissed for non-prosecution, the order passed by the Banking Court was without jurisdiction, thus, by allowing this appeal the impugned order is set aside. The application of the appellant seeking restoration of the suit is allowed, with the result that the judgment and decree of the Banking Court, in dismissing the suit for non-prosecution, also stands set aside. The learned Banking Court is directed to decide the leave application of the respondent afresh.