MIAN SAQIB NISAR, J.---The appellant is the defendant in a suit for recovery brought by the respondent-Bank. He was served and filed the application for leave to appear and defend, which was fixed for hearing on 3-3-2004, when Nazim Hussain, son of the appellant appeared before the Court, but his presence was not marked and by dismissing the leave application for non- prosecution, the suit has been decreed to the tune of Rs.3,23,320, hence this appeal.
2. It is argued by the learned counsel for the appellant that, son of the appellant was verbally authorized to appear on behalf of the appellant and the only request was made to keep the matter pending till the counsel for the appellant would come and argue the leave application, but the learned Court has hastily turned down the request and passed the decree.
3. We have heard the learned counsel for the parties and find that the defect is apparent on the face of the record. The Court, in the circumstances, should have kept the matter pending and should not have hastily dismissed the leave. application for non-prosecution when son of the appellant was present in the Court; may be the application could have been adjourned subject to the payment of costs, but no harsh action should have been taken. Resultantly, such judgment and decree is not sustainable, which is hereby set aside and the order of dismissal of the leave application for non-prosecution is also set aside. The leave application of the appellant shall be deemed pending and the Banking Court is directed to decide the same in accordance with law.
This appeal is accordingly allowed.
C.M. No.438-C of 2004 As no substantial proceedings have been held in the present case, therefore, office is directed to prepare a Cert for the refund of the court-fee to the applicant/appellant. Disposed of.