' UMAR ATA BANDIAL, J.---The instant petition assails order dated 8-7-1997 of the erstwhile Banking Tribunal under the Banking Tribunal Ordinance, 1984, whereby the petitioner Bank's application for setting aside order dated 15-5-1996 dismissing its suit for non-prosecution was dismissed. The application for setting aside the said order was filed on the very next date, namely, 16-5-1996. This application was supported by the affidavit of the petitioner's counsel wherein he has stated that he could not attend the proceedings on that date as he was busy before the High Court. The order sheet of the erstwhile Banking Tribunal in the suit by the petitioner has been perused. The bulk of adjournments in the case were obtained by the learned counsel for the sole defendant therein who is respondent No,2 in the instant petition. It is contended by the learned counsel for the petitioner that 15-6-1996 was r (it a date of hearing and notwithstanding the absence of the learned counsel for the petitioner on the said date the impugned order could not have been passed. Furthermore, that the petitioner's counsel had a valid explanation for his absence given in his affidavit filed on the very next day: The learned Banking Tribunal is said to have taken an extremely harsh view by non-suiting the petitioner which had claimed Rs,3,08,391.25 against the defendant/respondent No,2 herein.
2. In this petition the respondent No,2 defendant in the suit entered appearance on 7-2-2006 and was given time to file reply. But upon his failure to appear or be represented, ex parte proceedings were ordered against him on 8-3-2006.
3. On the point that the petitioner has taken two and half years to approach this Court against the impugned order, the learned counsel has referred to documents that show its counsel in the Banking Court to have wrongly reported that the suit had been decreed on 8-7-1997. It was only subsequently during the petitioner's internal audit that the existence of the impugned order came to light, hence this petition was filed.
4. The case made out by the learned counsel on merits against the impugned orders is strong. The proceedings before the Banking Court were not fixed for hearing for any specific purpose. Learned counsel for the defendant/respondent No,2 herein had been seeking adjournments therefore, it cannot be said that 15-5-1995 was a date of hearing within the contemplation of law. Reference is made to the cases of Abdul Ghani v. Muhammad Shafi 1990 CLC 1473 and Abdul Karim and 2 others v. Rehm Ali 1991 M LD 63, wherein except on a date of hearing, action to dismiss a suit in default cannot be taken against a plaintiff. Resultantly the impugned order is misdirected, fails to apply the relevant law and proceeds on points that are extraneous to the question determined by it. The judicial duty to exercise discretion reasonably, fairly and relevantly has thereby been breached.
5. There is accordingly good ground in the petitioner's argument on the merits of the impugned order. As to maintainability, prima facie, an appeal against the impugned order, was not competent under either the Banking Tribunal Ordinance, 1984 or under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Accordingly, as no other femedy was available therefore, the instant petition filed in the year 2000 is maintainable. On the principle laid down in Pakistan Post Office v. Settlement Commissioner 1987 SCM R 1119 the question of laches is to be dealt with on the touchstone of natural justice. In the circumstances of the present case it is fair and just that the cause of the petitioner-Bank be heard and decided on merits in accordance with law. Notwithstanding the grant of several opportunities to bring his appointed counsel, disclose grounds for default and on merits and to avail hearing the respondent has utterly failed and lastly absented himself. Therefore, his conduct amounts to the avoidance of and causing hindrance in the adjudication of the instant matter. The delay and avoidance tactics by the respondent cannot operate to deprive the petitioner of a determination of this petition including the question of relief by an adjudication on merits. Resultantly, and in the light of the foregoing discussion this petition is allowed and the impugned order dated 8-7-1997 is declared illegal, without lawful authority and of no legal effect. Consequently, the competent Banking Court shall decide the suit on its merits after hearing the parties in accordance with statute and rules of, natural justice.