' MIAN HAMID FAROOQ, J.---Muslim Commercial Bank Limited, through the filing of the present appeal, under section 12 of the Banking Companies (Recovery of Loan) Ordinance, 1979, has called in question judgment and decree dated 12-12-1995, passed by the learned Special Court Banking, whereby it dismissed appellant's suit for the recovery of Rs.8,40,086, due to nonproduction/lack of evidence.
2. Briefly stated, the facts giving rise to the filing of the present appeal are that the appellant filed a suit for the recovery of Rs.8,40,086, against the respondents, before the then Special Judge Banking, Lahore. Pursuant to the receipt of summons, as prescribed under' the law, respondents Nos.1 to 3 and 6 to 8 filed two applications, for the grant of leave to appear and defend the suit, and the then learned Banking Court, after finding that respondents Nos.1 to 3, have raised triable issues, accepted the application, filed by respondents Nos.1 to 3, and leave was granted only to the 'contesting defendants' to defend the suit vide order dated 6-12-1993. Subsequently written statement was filed; the learned Banking Court framed as many as five issues and the case was adjourned to a future date for recording the evidence of the parties. As the parties failed to produce the evidence, therefore, the learned Banking Court closed the evidence of the appellant and pursuant thereto dismissed the suit on account of non-production/lack of evidence vide judgment and decree dated 12-12-1995, hence the present appeal.
3. The learned counsel for the appellant has contended that as on the preceding date the case was not adjourned at the request of the appellant, therefore, no punitive action could have been taken against it. She has further added that on 12-12-1995, the case was fixed for recording the evidence of both the parties and as the witnesses of both the parties were not in attendance, therefore, the appellant's suit could not have been dismissed. Conversely, the learned counsel for the contesting respondents, while supporting the impugned judgment, has submitted that sufficient opportunities were granted to the appellant-Bank for the production of its evidence, but the same was not availed by it, therefore, the learned Banking Court was left with no alternative except to invoke the provisions of Order XVII, Rule 3, C.P.C.
4. Upon the examination of the record of the case, we find that the learned Judge Banking Court framed issues on 31-5-1994 and adjourned the case to 20-9-1994 for recording the evidence of the parties, however, on the said date, only the Bank Officer attended the Court and requested for adjournment, which was granted and the case was postponed to 4-1-1995. Needless to mention that on this date, respondents were not represented. On 4-1-1995, 14-3-1995 and 30-5-1995, both the parties failed to produce their evidence and therefore, the case was put off to further date at the joint request of the parties, for production of evidence. On the preceding date i.e. 17-9-1995, although the Bank Officer was in attendance, yet we find from the order that he did not make any request for the postponement of the case and only appraised the learned Banking Court that the learned counsel of the Bank is out of country. Order dated 17-9-1995 manifests that the learned Banking Court of its own accord, adjourned the case to 12-12-1995, for recording the evidence of the parties, as last and final opportunity to them, and on the said date, the suit was dismissed.
Order-sheet of the case evidences that on every occasion, when the case was adjourned, it was at the joint request of both the parties, as the case was always fixed for recording the evidence of the parties. The learned counsel of the 'contesting respondents' did not ever raise objection to any of the adjournment of the case, inasmuch as the contesting respondents' were contesting party to the postponement of the case. It appears that the case was mostly adjourned with the consensus of both the learned counsel. We feel that as the suit was not adjourned, only, at the request of the appellant and as a matter of fact, it was a joint request, therefore, the appellant could not be penalized for the non-production of the evidence, moreso when it was apprised to the learned counsel that the Bank Officer, intended to be produced by the Bank in evidence, has since retired from the service of the Bank. To our mind in the instant case, the provisions of Order XVII, rule 3, C.P.C. Were neither applicable nor attracted, as time was not granted to the appellant at their request.
' In our view order dated 17-9-1995, i.e. The preceding order, was a routine order and as a matter of fact, none of the parties requested for the adjournment of the case and the learned Banking Court, after being apprised that the learned Bank counsel is out of country, proceeded to adjourn the case in routine. This was not a fit case, wherein the provisions of Order XVII, rule 3, C.P.C. Could have been invoked, which, inter alia, provides that when time was granted to a party to produce his evidence and such party failed to procure the attendance of the witnesses, the Court may proceed to decide the suit forthwith. As held earlier, on the preceding date, the case was not adjourned at the request of the appellant, therefore, the impugned judgment, closing the right of the appellant to produce evidence and consequent dismissal of its suit, is not sustainable in law. Reliance is placed on Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 .
5. In the above perspective, we have examined the impugned judgment and find that the same is neither in accordance with the record of the case nor in consonance with the law on the subject, thus the same is contrary to law, open to exception and cannot be allowed to be maintained under the present set of circumstances. In view whereof, we are inclined to set the said judgment aside.
6. In view of the above reasons and findings, the present appeal stands accepted and the impugned judgment and decree dated 12-12-1995 is set aside with no order as to costs. The result would be that the appellant's suit for recovery shall deem to be pending before the learned Judge Banking Court IV, Lahore, who shall, firstly, fix the case for recording the evidence of the appellant, thereby providing two opportunities and if still the appellant fails to produce its evidence, needless to mention that law will take its own course. In case the appellant produces its evidence, then the 'contesting respondents' shall be allowed to produce their witnesses and thereafter the case shall be decided in accordance with law.