MIAN SAQIB NISAR. J.---This judgment shall dispose of instant Appeal No. 418 of 2002 and R.F.A.
No.419 of 2002 as common question of law and fact is involved in these appeals.
2. The respondent-Bank brought two suits for recovery against the appellants, in which, the appellants filed applications for leave to appear and defend the suits. The respondent-Bank was supposed to file reply to this application and the case was fixed for reply and for arguments thereupon on 13-4-2002. On the said date, neither the appellants nor their learned counsel appeared in Court. Since none represented the appellants, therefore, the application, brought by the appellants, was dismissed for non-prosecution and suits were accordingly decreed.
3. Learned counsel for the appellants contends that on 13-4-2002, the application for leave to appear and defend the suit was not fixed for hearing, rather, it was fixed for reply, therefore, the same could not have been dismissed for non-prosecution.
4. Confronted with the above, learned counsel for the respondent-Bank has drawn our attention to the order sheet, in which, it is stated that besides filing of the reply of the application, the case was also fixed for arguments on the said date.
5. We have heard the learned counsel for the parties and find that, in fact, the case was primarily fixed for 13-4-2002 for reply of the respondent and incidentally for arguments as well, because until and unless reply was filed and the appellants had the knowledge of the position taken by the respondent in reply, it was not possible for the appellant to argue their leave application, therefore, we hold that as the matter was fixed for the reply of the respondent, the leave application was not fixed for hearing and thus could not be dismissed for non-prosecution on the said date. Resultantly by allowing this appeal, the judgment and decree dated 13-4-2002 is set aside and application of the appellants for leave to appear and defend the suits, shall be deemed pending before learned Banking Court. We direct the learned Banking Court to decide the same within a period of three months from 18-12-2003, when the parties shall appear before the Court. Office is directed to remit the record of this appeal immediately to the trial Court. No order as to costs.