' MIAN HAMID FAROOQ, J.---Appellant/plaintiff, through the present appeal under section 22 of Financial Institutions (Recovery of Finances)Ordinance, 2001, has challenged order dated 8-5-2006, whereby the learned Judge Banking Court dismissed appellant's application seeking restoration of the suit, which was dismissed in default on 5-4-2006.
2. Necessary facts, which are discernible from the available record, are that the appellant filed the suit for rendition of accounts and permanent injunction, before the learned Judge Banking Court, Gujranwala, which was resisted by the respondents through the written statement, the issues were framed and parties produced their respective witnesses. It appears that at some stage the respondents were proceeded ex parte and the application for setting aside the said order was filed. The suit was dismissed for non-prosecution on 31-8-2005, and it was restored on 16-12-2005.
Thereafter the application for setting aside ex parte proceedings was taken up and when on 5-4- 2006 it was fixed for filing reply and hearing that application, the learned Judge Banking Court, dismissed the suit for non-prosecution. The appellant, on 3-5-2006, filed the application for restoration of his suit, and recalling of order dated 5-4-2006, however, the learned Judge Banking Court dismissed the said application, vide impugned order dated 8-5-2006, hence the present appeal.
3. Learned counsel states that the suit was dismissed on the date, which was not a "date of hearing" and the suit was not fixed for the said date, therefore, the impugned order is not sustainable. Conversely, the learned counsel for the respondents Nos.1 and 2 has supported the impugned order.
4. We have heard the learned counsel and examined the available record. We find from the perusal of order sheet, as noted above, that at one stage, the respondents were proceeded ex parte and they filed the application for setting aside ex parte proceedings. It appears appropriate to reproduce certain interim orders, which really clinch the matter:-- 9-1-2006. Present Ld. Counsel for the parties.
' Application for setting aside ex parte proceedings is pending. To come up for reply on 8-2-2006. -Sd/- Banking Judge {{URDU TEXT}} ' 20-2-2006. Present: for Ld. Counsel for the plaintiff.
' He has stated that original Ld. Counsel for the plaintiff is not available today, request for an adjournment. To come up for reply and arguments on 2-3-2006. -Sd/- Judge Banking Court. {{URDU TEXT}} ' It flows from the above narrative that from 9-1-2006 till the date of dismissal of the suit, it was not fixed for hearing and the proceedings, only on the application for setting aside ex parte proceedings, were undertaken. Order dated 16-3-2006 shows that the matter was adjourned to 5- 4-2006 for filing reply to respondent's application for setting aside ex parte order and for hearing the same. Obviously, the said application was listed on 5-4-2006 for hearing and the suit was not fixed for hearing. When the suit was not fixed for "hearing", how it could be dismissed for non- prosecution. On 5-4-2006 as none appeared on behalf of the parties, the learned Judge Banking Court at the maximum could have dismissed respondent's application, for setting ex parte order, for non-prosecution, but, to our mind, in no way appellant's suit, which was not, at all, fixed for hearing before the Court, could be dismissed. The impugned order was passed in complete oblivion of the facts of the case and law on the subject, inasmuch as the learned Judge Banking Court, while hearing appellant's application for restoration of suit, had the opportunity to retrace his steps by restoring the suit, but it committed another error of judgment. Had the learned Banking Court examined the order sheet and applied its judicial mind, it would have definitely restored the suit, because it is more than clear from the order sheet that the suit was not fixed for hearing. There is ample case-law on the subject that a suit, which was not fixed for "hearing", could not be dismissed for non-prosecution. If any case-law is needed Qaim Ali Khan v. Muhammad Siddique 1987 SCM R 733 can be referred. It has, inter alia, been held in the said case of Qaim Ali Khan that the date fixed for filing replication is not a "date of hearing" and the suit dismissed for non- prosecution on the date so fixed can be restored and the suit, when it was not fixed for recording evidence or hearing arguments or determining questions relating to the suit, could not be dismissed. It has further been held that the suit could not be dismissed on a date which is fixed only for deciding interlocutory matters.
5. Now coming to order dated 8-5-2006. The ground which appeared to have mainly persuaded the learned Judge Banking Court to dismiss appellant's application is that previously the suit was dismissed and restored. It needs hardly to be emphasized that previous dismissal, default condoned and restoration of suit is no ground for rejecting subsequent application for restoration of the suit. It is settled law that previous defaults committed by a party and condoned by the Court are not to be taken into consideration while deciding the second application for restoration of a cause, if of herwise case for restoration is made out under the law. Reference can be made to Seth Shivrattan G. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669: Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461 and National Bank of Pakistan v. Champhar (Pakistan) Ltd. And 2 others 1988 M LD 984. The Judge Banking Court has completely misdirected himself and the impugned order cannot be allowed to be maintained.
6. In the above perspective, we have examined the impugned orders and find that both the orders are not legal, thus, we are persuaded to set them aside.
7. In view of the above, the present appeal is decided in the following terms:--
(i) The appeal is allowed and the impugned order dated 8-5-2006 is set aside.
(ii) Resultantly appellant's application for the restoration of the suit is also accepted and order dated 5-4-2006, dismissing appellant's suit for non-prosecution is also set aside.
(iii) The suit and respondent's application for setting aside ex parte order shall be deemed to be pending before the learned Judge Banking Court, who, shall, firstly, decide respondent's application and then the main suit, after hearing the parties and of course in accordance with law.