IJAZ-UL-HASSAN KHAN,J. This appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the Ordinance) is meant to call in question the correctness and propriety of the judgment and order dated 13-6-2003, recorded by the learned Judge Banking Court, Peshawar, whereby the appellant-Bank's suit for recovery has been dismissed.
2. The appellant filed suit before the Banking Court, Peshawar on 24-1-2003 against Hazrat Hussain, respondent for recovery of Rs.1,63,753 inclusive of mark-up, liquidated damages and legal charges etc. through attachment, sale and auction of hypothecated goods/stock and mortgaged property of respondent. Notices were served upon the respondent through all the modes prescribed under section 9(5) of the Ordinance. The respondent appeared in Court and moved application for leave to appear and defend the suit. The appellant was directed to file reply. The omission on the part of the appellant's bank to comply with Court's order, led the learned trial Judge to proceed under Order XVII.. rule 3, of C.P.C. and dismiss the appellant's suit.
3. We have heard Mr. Alamzeb Khan, Advocate, for the appellant. No one has appeared on behalf of the respondent despite service through publication in the newspaper. The respondent is proceeded against ex parte.
4. Order XVII, rule 3 of the Code of Civil Procedure (V of 1908) is permissive and not mandatory and Court was supposed to proceed to decide the suit on merits in the light of the material on record. A decision under Order XVII, rule 3, C.P.C. must be a decision on merit on consideration of entire material on record and after hearing arguments of the parties. The impugned judgment and order is the result of hasty and off-hand decision. It is not only deficient In its contents but also bad in law. The law favours decision of the case on merits and not on mere technicalities. The interest of B justice requires the decision to be based on merits. Government of N.-W.F.P. and others v. Fazal Maula and others PLD 1993 Peshawar 192.
5. In view of the above, we accept the appeal on payment of Rs.5,000 as costs. The impugned judgment and order is set aside and the case is remanded to learned trial Judge with direction to decide the same afresh on merits. We make no order as to costs.