Instant first appeal is directed against order dated 25-5-2004 passed by learned Judge Banking Court-I, Gujranwala, whereby appellant's application for restoration of his application for setting aside ex parte decree was dismissed.
2. Precisely, relevant facts of the case are that respondent No.1 filed a suit for recovery of Rs.
13,38,986.72 , regarding finance facility availed by the appellant at Sharja Habib Bank Branch.
Notice to the appellant and his co-defendant, respondent No.2 was ordered to be issued through different modes including citation in daily newspaper but both of the defendants did not appear and they were proceeded against ex parte resulting in ex parte judgment/decree dated 26-1-2002 in favour of the respondent No. 1.
3. The appellant on 4-10-2002 filed an application under section 12 of the Financial Institution (Recovery of Finances) Ordinance, 2001 read with section 12(2), C.P.C. for setting aside the ex parte decree dated 26-1-2002 averring that respondents had given his incorrect address and his personal service was not effected. As regards citation in newspaper, it was pleaded that on account of incorrect address, the newspaper did not reach his abode and that pendency of the suit was not within his knowledge. The respondents contested this application by filing their reply and the same was fixed for arguments on 26-2-2004 but nobody appeared on behalf of the appellant, consequent to which, his application for setting aside ex parte decree was dismissed due to non-prosecution by him.
4. The appellant then on 30-3-2004 filed an application for restoration of his application dismissed in default of his appearance on 26-2-2004. This time, the ground for restoration was that his counsel had conveyed the next date as 30-3-2004 on which date he appeared in the Court and noticed that his earlier application was dismissed for non-prosecution on 26-2-2004. The learned Judge dismissed the application through the impugned order dated 25-5-2004. The appellant, thereafter filed this appeal in which, the respondents in response to notice by this Court, have appeared and are represented through their counsel.
5. It was contended on behalf of the appellant that the appellant was misled on the basis of misunderstanding of date collected by his counsel from the Court, hence, absence of the appellant or anybody else on his behalf on the date when the application of the appellant was dismissed for non-prosecution was not intentional/deliberate. It was further submitted that it was evident from the record that the counsel of the appellant was given incorrect date by his clerk and this fact has been sworn by his counsel through its own affidavit but the -same was not correctly construed by the trial Court. It was further emphasized that in case that the plea of the appellant was to be discarded by the trial Court, the same should have been done after due inquiry/probe and the appellant should have been given an opportunity of leading evidence. Precise submission of the appellant was that matter of restoration could not have been decided without framing of issues and recording of evidence.
6. Learned counsel for the respondents opposed the arguments of the appellant, supported the impugned order and urged that since the case on the preceding date, on which appellant's application was dismissed, was adjourned in presence of his learned counsel hence, there was no question of any misunderstanding of date. It was further submitted that both the stance of the appellant, one in his application for restoration and the other in affidavit of his counsel were self- contradictory/destructive hence, there was no necessity of further proceeding with the matter by framing of issues and recording of evidence. Non-appearance of the appellant on the date of hearing fixed by the trial Court was said to be intentional/deliberate which according to him, was done with an aimed purpose of delaying the proceedings so that decree earned by the respondents may not be executed against him. A reference to the interim order of the trial Court was also made to submit that application of defendant No.2, who is uncle of the appellant, was decided on merits on the same day, hence, it did not lie with the appellant to say that he was not aware of the date fixed on his application. It was further emphasized that application of appellant was hopelessly barred by limitation and deserved no credence.
7. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record with their assistance. Undeniably, application of the appellant seeking restoration of application for setting aside of ex parte decree was fixed for arguments on 25-2-2004 and from this date case was adjourned to 26-2-2004 in presence of learned counsel for the appellant. Alike application by codefendant of the appellant (respondent No.2) was heard by the Banking Court on, 25-2-2004 and was also kept for orders on 26-2-2004 on which date the same was decided through a detailed order. Co-defendant of the appellant is not alien to him as he is his real uncle who had undertaken to discharge his financial obligations hence, it is not believable that date of hearing i.e. 26-2-2004 was not within his knowledge and he did not become aware of the same till 30-3-2004, the date cf filing of his subsequent application.
8. Case of the appellant as set forth in the restoration application was that his counsel informed him on telephone about the next date of hearing as 30-3-2004. The affidavit of the counsel for the appellant Mr. Rizwan Ahmad Batth, Advocate only detailed that his clerk out of carelessness, misunderstood the next date as indicated without making any reference to telephonic talk with the appellant. Both these stances are not supported by each other besides the fact that no proof regarding incorrect noting of date by the counsel was appended, with the application i.e. his file of the brief or daily diary kept for entry of daily cases and no affidavit of the clerk of counsel was brought on record. Above all, affidavit of the counsel is in clear contradiction to the judicial file of the trial Court wherein case was adjourned from 25-2-2004 to 26-2-2004 in presence of the same counsel. File is also firstly thirsty of the proof of the fact that as to whether the appellant himself was not present in Court on 25-2-2004 and secondly his uncle had not informed him regarding dismissal of his application on 26-2-2004 because on the same day his uncle's application was decided by the same Court, in the same case. Plea of misunderstanding of the date fixed or its incorrect information to the appellant was not only fake but was also fabricated/afterthought and was not enough to restore his application and that too, after the period of limitation.
9. Since on the face of the record, no sufficient cause or plausible reason for absence of the appellant or his counsel on 26-2-2004 was made out and in view of contradiction between his stance in the application, to that the one taken by his counsel in this affidavit, the Banking Court correctly did not feel necessity to further process the petition by framing of issues and recording of evidence. We have no doubt to the effect that, had this exercise been undertaken, the net result of the case would have remained the same.
10. For the reasons noted above, we are constrained to hold that impugned order is absolutely justified and being in consonance with the record deserved no interference by this Court. This appeal has no merit in it and is accordingly dismissed, leaving the parties to bear their own costs.