MIAN HAMID FAROOQ, J.- Appeal in hand proceeds against order, dated 5-7-2005, whereby the learned Judge Banking Court dismissed appellant's application, under Order IX, rule 13, C.P.C, for setting aside ex parte decree, dated 9.3.2004.
2. Precisely stated facts of the case are that the respondent-Bank instituted the suit for recovery of Rs. 3.65.247 before the learned Judge Banking Court; the appellant filed an application for leave to defend the suit and resisted the claim of the respondent-Bank on various grounds; the appellant was granted leave to defend the suit; he filed the written statement; four issues were framed on 8- 10-2002 and the case was set down for recording evidence of the parties, however no witness was recorded. Finally on 9-3-2004, when the witnesses of the respondent-Bank were not in attendance, the appellant/defendant absented from the proceedings. The appellant was proceeded ex parte and on the same day ex parte decree for the recovery of Rs. 3.65.247 as prayed for, was passed against the appellant. On 10-3-2004, the appellant filed an application, under Order IX, rule 13, C.P.C, seeking setting aside of ex parte decree, dated 9-3-2004, which was resisted by the respondent- Bank through filing its reply, however, in the ultimate analysis, the learned Judge Banking Court, after finding that the application for setting aside the ex parte decree, under the circumstances, is not maintainable, proceeded to dismiss the said application vide impugned order, dated 5-7;2005, hence the present Appeal.
3. Learned counsel for the appellant contends that "sufficient cause" for the absence of the appellant as well as his learned counsel on 9-3-2004 was made out and this was a fit case, where the ex parte decree should have been set aside, more so, when the application for setting aside the ex parte decree was filed on the next day. He has further submitted that after framing of the issues, the learned Judge Banking Court was obliged under the law to give his findings on all the issues, as provided under Order XX, rule 5, C.P.C. He has added that the judgments relied upon by the learned Judge Banking Court, in dismissing appellant's application for setting aside the ex parte decree, are not applicable in the present case. Conversely, the learned counsel for the respondent states that the appeal is barred by time, therefore, deserves dismissal on this short ground. He has further submitted that the appellant should have filed the appeal against judgment and decree, dated 9- 3-2004 and his application, for setting aside the ex parte decree, was not competent, as rightly held by the learned Judge Banking Court.
4. We have heard the learned counsel at length and examined the available record. Firstly coming to the question of limitation. The appellant on 9-7-2005, applied for the grant of certified copy of the impugned order, dated 5-7- 2005, which was prepared on 13-7-2005 and delivered to the appellant on 21-7-2005, while the appeal in hand was filed by J the appellant on 17-8-2005.
Computing period of limitation from the date of delivery if certified copy to the appellant, i.e: 21-7- 2005, we feel under the circumstances of the present case that the appeal is within time and the objection of the leaned counsel is devoid of force.
5. Admittedly, as noted above, the appellant was granted unconditional leave to defend the suit; he filed the written statement; the issues were framed on 8-10-20Q2 and the learned Banking Court fixed the case for recording evidence of the parties. The examination of order sheet shows that not even a single witness was recorded and the suit was persistently adjourned for the same proceedings. Section 10(10) of the Ordinance, 2001 envisaged that where the application for leave to defend the suit is accepted, the Banking Court shall treat the application as written statement, frame issues relating to the substantial questions of law and facts and dispose of the suit after recording evidence, ln the case in hand although the written statement was filed and the issues were framed, yet the learned Banking Court disposed of the suit without recording evidence of the plaintiff. If the appellant/defendant was absent on 9-3-2004, as the issues were framed, therefore, the learned Judge Banking Court, after proceeding ex parte against the appellant, should have called upon the respondent-Bank failed to produce evidence in support of crucial Issue No. 3 on nine occasions. The learned Judge Banking Court in a hasty manner and without adverting to the law on the subject, after proceeding ex parte against the appellant, on the same day, without, recording Bank's evidence, passed the decree assuming that leave application stands dismissed.
The proper course of action which should have been adopted by the learned Judge Banking Court, under the circumstances, was to proceed ex parte against the defendant, called upon the respondent to produce evidence in support of its claim and then to decide the suit after rendering his findings on all the issues on the basis of the evidence on record. However, if the Bank could not produce any evidence, then its suit was liable to be dismissed. We find support from the judgment reported as Sh. Hayatullah v. Mian Abbas Ahmad Khan and another 1970 SCM R 130, wherein the Hon'ble Supreme Court of Pakistan declined to maintain the ex parte decree, which was passed without recording any evidence, on the ground that the respondents were absent; lt appears appropriate to reproduce a portion of the judgment, which reads as follows:- "Copies of the various orders of the Trial Judge which have been placed on the file also appear to indicate that the ex parte decree was passed against respondents without any evidence being recorded, merely on the ground that the respondents were absent. This preliminary decree, therefore,, being based on no evidence has no value in law. This is a grave defect in the case of the petitioner who wants that preliminary decree to be preserved intact. We do hot think this is a fit case for interference by way of special leave to appeal and dismiss the petition."
Hon'ble apex Court of this country, in the case reported as Kamran Co. And others v. Messrs Modern Motors and another PLD 1990 SC 713, has held that where the appellant has filed the written statement and issues have been settled, them it was obligatory on Court to have decided the case on merits and where no evidence was produced by the plaintiff, as decree could not be passed.
Relevant portion of the said judgment is reproduced below:- "Thereafter, the issue had been settled. Therefore, it was obligatory on the Court to have decided the case on merits but as no evidence was produced by the respondent a decree could hot be passed in the circumstances of the case. The judgments and decrees of the Courts below against the appellants are set aside."
6. Now coming to the question of maintainability of appellant's application under Order IX, rule 13, C.P.C. The learned Judge Banking Court, while dismissing appellant's application and non-suiting him has relied upon the judgment reported as National Development Finance Corporation, v.
Sheikhoo Cooking Oil Mills Limited and 1 others 2002 CLD 341, Sultan Mehmood and another v. Habib Bank Limited through Manager 2001 M LD 1987 and Messrs Ammar Rice Dealers and 2 others v.
National Bank of Pakistan and others 2004 CLD 857. Suffice it to say that the principles of law laid down ln the said judgments are not attracted in the present case and the judgments are clearly distinguishable inasmuch as in air the cases the defendant, after filing the leave application and before its decision, absented from the proceedings, which resulted into passing ex parte decree and it was held under those circumstances, that defendant's . Application under Order IX, rule 13, C.P.C, is incompetent and he should' have filed the appeal against the original decree, lt may be noted that in the afore-noted cases neither the lave to defend was granted nor written statement was filed nor the issues were framed and the case was not fixed for recording evidence, lt flows there from that the learned Judge Banking Court without going through the contents of the said judgments relied upon the said judgments, which approach, to say the least, is perfunctory and cannot be countenanced under any stretch of imagination. We are of the view that under the present set of circumstances, the appellant's application under Order IX, rule'13, C.P.C, was maintainable and it was erroneously dismissed by the learned Judge Banking Court on the ground of its in competency.
7. Ln the above perspective, we have learned the impugned order and find that the same suffers from legal infirmities and deserves to be set aside. The judgment and decree, dated 9-3-2004 was passed in complete oblivion of the facts of the case-law on the subject and ignoring the law declared by the Hon'ble Supreme Court of Pakistan, . Therefore, we are persuaded to set it aside.
8. Ln view of the above the present appeal is decided in the following terms:-
(i) The appeal is allowed and the impugned order,' dated 5.7.2005, dismissing appellant's application for setting aside the ex parte decree is set aside.
(ii) Appellant's application under Order IX, rule 13, C.P.C., filed on 10-3-2004, is accepted and consequent thereto ex parte judgment and decree, dated 9-3-2004 is also set aside.
(iii) Resultantly, respondent-Bank's 'suit for recovery shall be deemed to be pending before the learned Judge Banking Court No. 1, who shall decided the same after recording evidence of the parties and of course in accordance with law.
(iv) The issues were framed on 8-10-2002, but the respondent could not produce even a single witness uptill 9-3-2004. The learned Judge Banking Court shall provide maximum two opportunities to the respondent-Bank to adduce its evidence, and if the respondent- Bank/plaintiff Jails to produce his witnesses, even after providing two opportunities, needless to add that law will take its Own course. ' ,
(v) If the respondent-Bank produces its . Evidence then two opportunities shall be provided to the appellant to adduce his evidence.
(vi) No order as to costs.
9. Parties are directed to appear before the learned Judge Banking Court No. 1 on 12-4-2006.