' MIAN HAMID FAROOQ, J.---Present first appeal, filed by the appellant/plaintiff, proceeds against judgment and decree, dated 20-4-2005, whereby the learned Judge, Banking Court dismissed appellant's suit for mandatory injunction.
2. Precisely stated facts necessary for the decision of the present appeal are that the appellant filed the suit for grant of mandatory injunction, together with the application for temporary injunction, before the learned Judge, Banking Court, under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, (Ordinance). The learned Judge, Banking Court instead of issuing summons, as required under section 9(5) of the Ordinance, summoned the respondents. In response thereto, they filed the "written statement", with the prayer for the grant of leave to defend the suit, and reply to the application for the grant of temporary injunction. However, the learned Judge Banking Court did not decide the leave application and, after finding that the suit is not maintainable and no interim relief can be granted to the appellant, proceeded to dismiss his suit, vide impugned judgment and decree, dated 20-4-2005, hence the present appeal.
3. Learned counsel for the appellant has contended that the learned Judge, Banking Court, without deciding respondent's application for leave to defend the suit, dismissed the suit, which course of action is not recognized under the law. Conversely, the learned counsel for_ the respondent, has submitted that since the possession of the vehicle was taken over and it was sold, therefore, the suit was not maintainable and it was rightly dismissed by the learned Banking Court.
4. We have heard the learned counsel for the parties and examined the summoned record, which manifests that when the plaint was presented, the learned Judge, Banking Court, instead of issuing summons, as required under section 9(5) of the Ordinance, summoned the respondents only through registered post. Section 9(5) of the Ordinance, provides that on a plaint being presented to the Banking Court, summons in Form No, 4 in Appendix B to the Code of Civil Procedure, 1908 (Act V of 1908) or in such form as may, from time to time, be prescribed by rules, shall be served on the defendant through the bailiff or process server of the Banking Court, by registered post acknowledgement due, by courier and by publication in one English language and one Urdu language daily newspaper, and service duly effected in anyone of the aforesaid modes shall be deemed to be valid service for purposes of the Ordinance. As noted above, admittedly the learned Banking Court did not issue summons as required under section 9(5) of the Ordinance. Thus the learned Judge Banking Court did not adopt the procedure as prescribed in the special statute and has, in fact, gone outside the scope of section 9(5) of the Ordinance. The learned Judge, Banking Court has completely bypassed the said procedure of Banking Courts and has evolved its own procedure, while it was bound to follow the procedure provided under the said special statute.
5. Admittedly, the respondent filed the written statement and also prayed for grant of leave to defend the suit, but the said application was not decided by the learned Banking Court and it proceeded to dismiss appellant's suit. We feel that the approach of the learned Judge Banking Court in dismissing B appellant's suit is perfunctory. The learned Judge Banking Court was obliged under the law to firstly decide respondent's application for leave to defend the suit and it by refusing to decide leave application has violated the provisions of section 10(8) of the Ordinance. If the learned Judge Banking Court was of the view that the respondent has raised substantial questions of law and facts, then leave to defend could have been granted to the respondent-Bank, but appellant's suit could not be dismissed/rejected at that stage. Undoubtedly, after the grant of leave, the respondents could have filed the application under Order VII, rule 11, C.P.C. And if the case falls under the said provision of law, the learned Banking Court has the jurisdiction to reject the plaint. The impugned judgment was passed by the learned Judge, Banking Court in complete oblivion of the principle of law laid down by this Court in the cases reported as Messrs Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through Manager 2003 CLD 245 and Sheikh Muhammad Kashif v. Askari Leasing Limited through Manager/Chief Executive of Branch/Recovery Officer 2004 CLD 1645, which are completely applicable and attracted. Under the present facts and circumstances of the case. It may be noted that under Article 201 of the Constitution of Islamic Republic of Pakistan, any decision of this Court, to the extent it decide question of law, shall be binding on all the Courts subordinate to it.
6. In the above perspective, we have examined the impugned judgment and find that the same is contrary to the provisions of Ordinance, inasmuch as the aforenoted decisions of this Court, which are completely applicable in the present case, were completely ignored.
7. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree, dated 20-4-2005 is set aside, with no order as to costs. Resultantly, appellant's suit and respondent's leave application, both, shall be deemed to be pending before the learned Judge Banking Court, which, at the first instance, shall decide the leave application and then the suit, after hearing the parties and of course in accordance with law.
' Office is directed to immediately transmit the record to the concerned Court.