Mst. TAHIRA YASMEEN and another vs MUSLIM COMMERCIAL BANK through Branch Manager and 6 others

ORDER

Respondent-Bank's suit for recovery of Rs.16,74,500 was decreed, against the appellants and respondents Nos.2 to 7, by the learned Banking Court, vide judgment and decree dated 1-11-2003.

The appellant filed the application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, for setting aside the said judgment and decree, which was dismissed by the learned Judge Banking Court, vide impugned order dated 4-2-2005, hence the present appeal.

2. Record of the learned trial Court has, today, been received under the directions of this Court.

3. When the learned counsel was asked to show that how under the circumstances appellant's application, under section 12 of Ordinance, 2001, was competent before the learned Banking Court, he submitted that as no application for thegrant of leave was filed by the appellants before the learned Banking Court, therefore, their application was maintainable. He has relied upon Mst. Saeeda v. Habib Bank Limited and others 2002 CLD 1739.

4. This Court, vide order dated 1-3-2005, after recording the stance of the learned counsel and after finding that the leave application was, in fact, filed on behalf of the appellants, which was signed by respondent No.3, as their attorney, summoned the record and directed the appellants to appear in person, today, in the Court, but they are absent. Similarly, despite issuance of notice to the respondent No.3 through registered post and by courier service, he is also not in attendance.

Learned counsel states that he has duly intimated the appellants qua the orders of this Court, but they have shown their inability to appear in this Court. No lawful excuse has been rendered for the absence of the appellants.

Although this Court is empowered under the provisions of Order X, rule 4(2) read with Order XLI, rule 33, C.P.C., under the present set of circumstances, to pronounce judgment against such persons, yet we have proceeded to decide the appeal on its merits.

5. We have examined the summoned record and find that the application seeking leave to defend the suit was filed on behalf of all the defendants, including the appellants, which was signed by the respondent No.3 for self and as attorney of defendants Nos.3 to 8. Not only this but the respondent No.3, who is real brother of the appellants, also furnished the affidavit in support of the application for leave to defend the suit, inter alia, deposing that he is general attorney of defendants Nos.3 to 8.

In view whereof, it cannot be argued that the appellants did not file any application seeking leave to defend the suit. Today the conduct of the appellants, by not appearing before this Court, also fortify the fact that they were aware about the pendency of the suit and, in fact, filed the application for leave to defend the suit through their brother. The respondent No.3, who was issued notice through registered post and by courier service, has also not entered appearance, presumably apprehending that he may not be confronted with his signatures on the application and other allied documents. The total scenario, prima facie, falsify the contention raised by the learned counsel that the appellants did not file any application seeking leave to defend the suit.

6. In view of the above findings, as the appellants did file the application for leave to defend the suit and subsequently the decree was passed, therefore, their application, under section 12 of Ordinance, 2001, was not maintainable in law and thus no exception could be taken to the impugned order. The learned Banking Court has rightly relied upon the case of Messrs Ammar Rice Dealers and 2 others v. National Bank of Pakistan and others 2004 CLD 957. In view whereof, the principles laid down in the case of Mst. Saeeda (ibid), relied upon by the learned counsel, are not applicable in the present case.

7. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed.

Office is directed to immediately transmit ti e !cord to the learned Banking Court and ensure that 0( same reaches to the concerned Court well before 17-3-2005 the date fixed in the case.