MUHAMMAD KHALID BUTT vs UNITED BANK LIMITED

' MIAN SAQIB NISAR, J.--- By a single judgment, we intend to dispose of the following appeals:-- ' R.F.A. No,72-A of 2002; R.F.A. No,69 of 2002 and R.F.A. No,70 of 2002.

2. In R.F.A. No,72 of 2002, the facts are that the appellant filed a suit for declaration and cancellation of certain documents against the respondent-bank, on the ground that the appellant had not availed the facility of loan/finance and the documents on the basis of which, such loan/finance has been created, are forged and fabricated, resultantly, those be declared invalid and be cancelled accordingly. The suit was filed in March, 1997. The respondent-Bank applied for leave to appear and defend, which was allowed; issues were framed and the case was at the evidence stage, when the respondent-Bank brought two recovery suits against the appellants on the basis of the accounts and the documents, which were the subject-matter of the suit earlier filed by the appellant. The appellant applied for leave to appear and defend in both these suits, which applications were rejected and the suits of the respondent-Bank have been decreed. These judgments and decrees are challenged in the above title R.F.As. Nos,69 and 70 of 2002.

3. While passing the above impugned judgments and decrees in the aforesaid manner, the learned Banking Court by applying the provisions of Order VII, rule 11, C.P.C., also rejected the plaint of the appellant in his suit, on the ground that his leave applications have been refused in the two suits brought by the bank. This order has been impugned in R.F.A. No,72 of 2002.

4. Learned counsel for the appellant contends that in the suit filed by the appellant, which was earlier in time, leave was granted to the respondent-Bank, issues were framed and the case was at the evidence stage, the key propositions involved in this matter, were about the availing of the finance by the appellant, as also the validity of the documents, on the basis of which, the bank has founded its claim in the subsequent suits, therefore, this being question of fact, could not be resolved without recording of the evidence and the plaint of the appellant, could not be rejected only for the reason that in the other two suits, brought by the bank, leave has been refused to the appellant. It is also submitted that in the facts and circumstances of the case and on the ground, that the matter between the parties qua the same subject and the issues, was earlier pending adjudication, which required the recording of evidence. The appellant was necessarily entitled to leave in the two suits, brought by the respondent-Bank.

5. We have heard the learned counsel for the parties. Undoubtedly, in the earlier suit of the appellant, and two subsequent suits of the respondent, the subject-matter is the same and the issues are directly and substantially akin. If the suit of the appellant is decreed, the respondent's suits are bound to fail and vice versa, therefore, when leave has been granted to the respondent in the first suit, on the principle of consistency and comity and for the due administration of justice, the appellant was also entitled to the leave for appear and defend, which should have been granted by the Court. The Court should have explored the possibility, if it was permissible that, all these matters be consolidated and tried together. However, if for certain reasons, this could not be taken, the cases should have been conducted and proceeded simultaneously and decided together in order to avoid any conflicting judgment. But, for no reasons, the plaint of the appellant could be rejected under Order VII, Rule 11, C.P.C. On the premises that the leave application of the appellant, in the suit filed by the respondent-Bank, has been refused.

' In the light of above, these appeals are allowed. The impugned judgments and decrees/orders are set aside. The appellant is allowed leave in the two suits, brought by the respondent-Bank. The Court below shall consider if, it is legally and factually permissible to consolidate the suits, if not, the Court after framing of the issues, arising out of the pleadings of the parties, in each case separately, shall simultaneously try the suits and pass the judgments and decrees on the same day, so that conflicting decisions can be avoided.