' MIAN HAMID FAROOQ, J.---Instant appeal, filed by the appellants/judgment-debtors under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 20-1-2003, whereby the learned Judge Banking Court dismissed appellants' application, under section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 read with section 12(2), C . P. C .
2. Facts of the case, in brief, are that respondent-Bank filed the suit for recovery of Rs, 1,91,18,000, against the appellants, pleading therein, that certain financial facilities were availed by appellant No,1, documents were executed by the appellants and non-fulfilment of the contractual obligations on their part necessitated the filing of the suit. After the presentation of the plaint, the learned Judge Banking Court, vide order dated 24-1-2000, issued notices through ordinary process, registered acknowledgement due, courier service and through proclamation in the two daily newspapers, i,e, "News" and "Pakistan". The appellants failed to file an application for leave to defend the suit and resultantly, the learned Judge Banking Court, after noticing absence of the appellants and that no leave application was filed, proceeded to pass the ex parte decree for the recovery of Rs,1,91,18,000 jointly and severally, along with costs and mark-up as prayed for in favour of the respondent-Bank, vide judgment and decree dated 8-4-2000. The appellants, on 24-5-2001, filed the application under section 12 of Act XV of 1997, together with an application for condonation of delay. The respondent-Bank resisted both the applications through filing their replies. The learned Judge Banking Court, in the ultimate analysis, without rendering any findings on the application for the condonation of delay, proceeded to dismiss appellants' application, under section 12 of Act XV of 1997, vide impugned order dated 20-1-2003, hence the present appeal.
3. Learned counsel for the appellants has submitted that although necessary process, as prescribed under the law, was issued for the service of the appellants, yet genuine efforts were not made to affect their service, that there was no deliberate attempt on the part of the appellants to avoid service in the suit and that the Bank was in the knowledge of the latest addresses of the appellants (9-Ratcliff Road, Forest Gate, London-E 7 8 DD (U.K.)), but the suit was filed giving the abandoned addresses of the appellants. He has relied upon Brig. (Retd.) Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), Abdul Kadir and others v. Abdul Karim and another (1986 CLC 1895), Abdul Majeed and others v.
Senior Member, Federal Land Commission, Rawalpindi and others (1991 CLC 1243), Messrs Wahid Ice and Cold Storage Plant through Proprietor v. National Bank of Pakistan, I. I. Chundrigar Road, Karachi (PLD 1996 Karachi 529), Muhammad Iftikhar and another v. District and Sessions Judge, Faisalabad and 7 others (2003 CLC 254) and (2005 CLD 373). Conversely, the learned counsel for the respondent has submitted that the attorney has filed the appeal, therefore, the same is incompetent and that the application, filed by the appellants, under section 12 of Act XV of 1997, was time-barred. He has referred to the case of M. Afzal v. Allied Bank of Pakistan Ltd. And another (2003 CLD 765). He has further contended that in the matter of service, each day's delay has to be explained by a party, who seeks condonation of delay.
4. We have heard the learned counsel for the parties at length and examined the summoned record.
5. Firstly dealing with the preliminary objection, raised by the learned counsel for the respondent, as to non-maintainability of the appeal. We find from the memorandum of appeal that the appellants filed this appeal through one Muhammad Younis Baig, as their special attorney. It has been narrated in para. 1 of the said memorandum that the appeal is being filed through special attorney, Muhammad Younis Baig, who had duly been authorized and empowered vide deed of special power of attorney dated 25-5-2001. We have also examined the said power of attorney (photocopy of which has been placed on record) and find that Muhammad Younis Baig was authorized by the appellants to file appeal and other proceedings in this Court as well as before the Hon'ble Supreme Court of Pakistan. There is no rebuttal on record to this power of attorney. We are of the view that the appeal has competently been filed and the same was rightly entertained by the office.
6. We find from the record that the appellants, in order to project their view point, viz. They were not served as they were residing abroad and the latest addresses were in the knowledge of the respondent-Bank, appended photocopies of certain documents as Annexures A/1, A/2, A/3, A/4, B/1, B/2, B/3, B/4, B/5 and B/6 (at pages 125 to 143 of the record), with their application for setting aside ex parte decree. We have perused the impugned order in juxtaposition with the documents, produced by the parties, and find that the learned Judge Banking Court although referred to certain documents, filed by the respondent-Bank along with the suit, none of the documents, as noted above, was either discussed or referred to by the learned Judge Banking Court, while deciding appellant's application, while it was incumbent upon the learned Judge Banking Court to consider the documentary evidence of the parties and then to have decided the cause. Firstly ex parte decree was passed against the appellants and secondly their application was dismissed even without looking at the documents produced by them, which at least prima facie show that certain correspondence was exchanged between appellant No,2 and Muslim Commercial Bank Limited. The said letters also indicate addresses of the appellants (9-Ratcliff Road, Forest Gate, London-E 7 8 DD (U.K.)) and we are of the view that the case of the appellants has gravely been prejudiced by ignoring to consider the documents produced by them. The respondent-Bank did not categorically deny those letters in any way. Those documents, which have substantial bearing on the fate of the case, were neither discussed nor considered by the learned Banking Court and were completely brushed aside while deciding appellants' application. It is, thus, clear that the learned Banking Court omitted to read/consider the documents, produced by the appellants in support of their claim, while giving its findings on the controversies involved between the parties.
We feel that the impugned order suffers from non-reading of documentary evidence, hence the impugned order deserves to be set aside.
7. It is settled law that if material document or material evidence is not considered by the lower Courts, then this Court can interfere in the matter. If any case-law is needed, Shaukat Nawaz v.
Mansab Dad another (1988 SCMR 851) and Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162) can be referred. Hon'ble Supreme Court of Pakistan in a case reported as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), while dealing with the similar proposition of law has held as under:- " If the findings of the first Appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if. It does not reveal a logical basis for differing from the findings of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
' The principle laid down in the case of Madan Gopal (supra), was further approved by the apex Court in the case reported as Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302).
' In addition to the above case-law, it appears appropriate to refer to another judgment reported as Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84), wherein Hon'ble august Supreme Court has, inter alia, held that judgment should be based on the evidence/material available on record and reasons must be an outcome of the evidence available on record. It would be appropriate to reproduce the relevant portion of the said judgment, which reads as follows:-- " It would be advantageous to note that judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and if the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in stricto senso and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties."
8. There is another aspect of the case. Although the appellants did file the application under section 5 of the Limitation Act, for the condonation of delay in filing the parent application under section 12 of Act XV of 1997, yet we do not find from the record that the said application was either accepted or rejected by the learned Banking Court either through a separate order or while deciding the main petition. It leads to the irresistible conclusion that the said application was not disposed of and, thus, the same shall be deemed to be pending. The learned counsel, as noted above, has raised an objection that the application, under section 12 of Act XV of 1997 was barred by time, though there are no findings to this effect in the impugned order.
9. It is settled law by now that if any miscellaneous application is filed by the parties, it was incumbent upon the Court to decide the said application either way through a specific order and then to decide the main case and failure to decide such application would vitiate the main judgment. If any case-law is needed, judgments reported as Pak Carpet Industries Limited v.
Government of Sindh and 2 others (1993 CLC 334), Muhammad Yaqub v. Baqir and 2 others (1993 CLC 1319), Khair Deen v. Rehm Deen and 4 others (1996 CLC 1731) and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another (1998 MLD 150) can be referred.
10. In the above perspective, we are of the view that the impugned order is exceptionable, against the principles of law laid down by the Hon'ble Supreme Court of Pakistan and definitely calls for interference by this Court, thus, we are inclined to set aside the impugned order and to remand the case to the learned Banking Court for the decision of the case, afresh.
11. Upshot of the above discussion is that the present appeal is decided in the following terms:--
(i) The present appeal is allowed and the impugned order dated 20-1-2003 is set aside.
(ii) Appellants' application under section 12 of Act XV of 1997 (page 83 of the record) and section 5 of the Limitation Act (page 111 of the record) shall be deemed to be pending before the learned Judge Banking Court, who shall decide the both, afresh, after taking into consideration the documents. Produced by both the parties, after hearing them and of course in accordance with law, within a period of four months from today.
(iii) No order as to costs.