Syed PHOOL BADSHAH and others vs ADBP through Manager, Peshawar

' KHILJI ARIF HUSSAIN, J.---This appeal, with leave of the Court, has been filed against judgment dated 10-1-2002 of the Peshawar High Court, Peshawar passed in FAB No,33 of 1999 whereby learned Division Bench of the High Court while dismissing the appeal maintained the order passed by the Banking Court.

2. Facts of the case need not be reiterated as the same have been mentioned in detail in the impugned judgment, but suffice it to say that Agricultural Development Bank of Pakistan instituted a suit against Messrs Nowshera Engineering Company Ltd., through the joint Official Liquidator as well as against the appellants, claiming a decree for recovery of Rs,25.820 million plus cost through sale of the mortgaged properties etc. And also a joint and several personal decree against the appellants. The appellants filed an application for leave to defend, which was declined by learned Judge, Banking Court-II, Peshawar and decreed the suit for a sum of Rs,2,15,16,642. The appellants, feeling aggrieved, filed appeal before the Peshawar High Court, Peshawar which was also met the same fate. Hence, this appeal.

3. We have heard the learned counsel for the parties and have gone through the material available on record as well as the judgments of the Courts below.

4. Learned counsel for the appellants contended that respondent No, 1 filed a suit for recovery of finance facility of Rs,18.324 million out of which the appellants has paid more than a sum of Rs,170 million; that the respondent in memo of plaint claimed relief in respect of grant of finance facility of Rs,18.324 million to the appellants under loan head No,038716 and execution of By Back Financing Agreement dated 28-4-1992 and execution of other charge documents, .But learned Banking Court has committed a serious error of law in taking into consideration extraneous matter, not taken in the plaint and decreed the suit in respect of alleged finance facility of Rs,13.743 million, which was not subject matter of the suit.

5. The learned counsel for respondent No,1 frankly conceded that the respondent's suit was based on finance facility under loan head No,038716 for a sum of Rs,18.624 million, however, at the time of arguments, the respondent has placed on record some documents in respect of other finance facility which was granted to Messrs Nowshera Engineering Company Ltd., was used and utilized by the said company and that the learned Banking Court after taking into consideration all aspects of the matter rightly decreed the suit.

6. In reply to a query whether any application for amendment of memo of plaint to incorporate the finance facility which was used by Messrs Nowshera Engineering Company and was not subject matter before the Banking Court in suit was filed along with supporting documents, learned counsel frankly conceded that no such application was filed except placing on record some documents at the time of arguments.

7. The provisions of Order VII, Rule 7 of the Civil Procedure Code empowers the Court to grant an effective or ancillary relief even if not prayed, as the plaint as whole is to be looked into in order to determine relief for which plaintiff is entitled, however, no relief can be granted upon the facts and documents not disclosed in the pleading.

8. We are afraid that the Banking Court cannot decree the suit in respect of an amount which was not subject matter before it in the suit. This being the position, we allow the listed appeal; set aside the judgments and decree dated 10-1-2002 and 6-4-1999; and remand the matter to learned Banking Court for decision afresh strictly in accordance with law. However, if respondent, so advised, may file an application for amendment of memo of plaint.

9. These are the reasons of our short order of even date.