CH. IJAZ AHMAD, J.---The brief facts, out of which the present appeal arises are, that the appellant filed a suit for the declaration against the respondents in the Banking Court No.II, Faisalabad, which was dismissed by the Banking Court vide judgment dated 29-5-2002, hence the present appeal.
2. Learned counsel of the appellant submits that the impugned judgment is not sustainable in the eyes of law. I-le further submits that the learned Judge has passed the impugned judgment without application of mind. He further urged that the appellant's suit is prior to the suit of the respondents, therefore, the learned Banking Court erred in law to dismiss the suit of the appellant on surmises and conjectures.
3. Learned counsel of the respondents submits that the Judgment and decree of the learned Banking Court is valid as in case the suit of the respondents be allowed by the Banking. Court. then it tantamounts that the suit of the appellant would be dismissed automatically.
4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce the operative part of the impugned judgment and decree to resolve the controversy between the parties:-- The relief claimed by the plaintiff in this suit cannot be granted by way of declaration and in my opinion plaintiff can seek any relief from the Court where a suit for recovery is already pending against him by way of submission of application for grant of leave under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 or by other means under law. This suit is not proceedable, hence is hereby dismissed."
5. The bare reading of the aforesaid operative part of the judgment clearly shows, that the Banking Court has passed the impugned judgment without application of mind, therefore, the impugned judgment is not sustainable in the eyes of law, as laid down by the Honourable Supreme Court in the judgment reported as Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173.
In view of what has been discussed above, the impugned judgment and decree is set aside meaning thereby, that the suit filed by the appellant shall be deemed to be pending adjudication before the Banking Court No.II, Faisalabad. The parties are directed to appear before the Banking Court on 20-6-2005, who is directed to decide the suit of the appellant in accordance with law.
With these observations, this appeal is accepted and the case is remanded.