MIAN SAQIB NISAR, J.--- The respondent-Bank brought a suit for the recovery of Rs.82,75,884 against the appellant, in which, the appellant moved an application for leave to appear and defend the suit, which was listed for hearing on 24th of September, 1998 but due to non- appearance of the appellant, was dismissed for non-prosecution and, simultaneously, the decree amounting to Rs.8,275,884 was passed in favour of the respondent-Bank. Against the above, the appellant did not file any appeal but moved an application for setting aside ex parte decree on the ground that the date was erroneously noted as 14-10-1998 instead of 24-9-1998. Along with the application, affidavit of Mr. Ashar Elahi, Advocate, who was the counsel for the appellant, was also filed. The learned Court below has dismissed the application, primarily, misconceiving that there was no affidavit of the above fact.
2. After hearing the learned counsel for the parties, we find that whether the date was erroneously noted or otherwise is a question of fact, and if there was any doubt in the mind of the Court, that the plea of the appellant is not fully substantiated from the available record, even, on account of the affidavit of the counsel to the above effect, the Court should have allowed the parties to produce the evidence. However, considering the contents of the application, accompanied by the affidavit of the counsel, which has not been positively controverted by the respondent side, we find that a sufficient cause for the restoration of the leave application, was made out by the appellant and their application in this behalf should have been allowed. Resultantly, by allowing this appeal, we set aside the order of the dismissal of the appellant's application for leave to appear and defend the suit for non-prosecution, with the result that the ex parte decree of the Court also stands set aside. The application of the appellant shall be deemed pending before learned Court below which would be decided in accordance with law. The parties arc directed to appear before learned Banking Court No. I. Lahore on 1-7-2004 and the said application be positively decided within a period of one month thereafter.
No order as to costs.