1. GULZAR AHMAD, J.---This application is under Order IX, rule 9 read with section 151, C.P.C. With affidavit of Mr. Najmul Hassan Janjua, Advocate for recalling of order dated 12-3-2004 and restoring the suit. Counter-affidavit is filed by defendant No,2. On 26-8-2005 affidavits of plaintiff so also of Mr. Akhlaq Ahmed, Advocate were filed.
2. ' At the outset both Mr. Amanullah Khan s well as Khawaja Shamsul Islam, learned counsel for the defendants have raised objection to the maintainability of this application. Mr. Amanullah has stated that the order dated 12-3-2004 was passed under rule 3 of Order XVII, C.P.C. Remedy against which was only by way of an appeal. He has cited the case of Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474. Mr. Khawaja Shamsul Islam has contended that the suit being banking suit, no review of the order dated 12-3-2004 can be made in view of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (to be called the Ordinance, 2001). Ms. Fouzia Rasheed has stated that the application is maintainable and cited the case of Messrs Baghpatte Services (Pvt.) Ltd. v. Allied Bank Limited 2001 CLC 1363.
3. ' Perusal of record shows that issues were framed on 4-4-2003. On 29-4-2003 the matter came up for evidence when further one week time was allowed to file original documents. On 15-8-2003 matter was fixed for evidence when again one week time was allowed to the plaintiff to file original documents. On 30-9-2003 the matter again was fixed for evidence as well as for order on C.M.A.
4. 4677 of 2003. In this application plaintiff had prayed that it may be allowed to file photocopies of documents filed with the plaint instead of originals. Notice was ordered on this application and the matter of recording of evidence was adjourned. On 11-11-2003 the matter was fixed for hearing of C.M.A. 4677 of 2003, for evidence and for order on C.M.A. 6338 of 2003. In the last mentioned application, defendant No,1 has sought permission to file three original documents stated in the application. The matter was simply adjourned. On 4-12-2003, again same matters were fixed as on 11-11-2003. Notice of C.M.A. 6338 of 2003 was ordered while remaining were adjourned. On 24-12- 2003 at the request of parties counsel the case was adjourned. On 12-2-2004 C.M.A. 4677 of 2003 was disposed of as the plaintiff counsel stated that certified copies of the documents will be filed.
5. C.M.A. 6338 of 2003 was allowed. As regard evidence, plaintiff counsel sought permission to file affidavit-in-evidence of plaintiff s witness which was allowed and two weeks time was granted to file affidavit-in-evidence and the matter was adjourned to 12-3-2004 for cross-examination of the plaintiffs witnesses. On 12-3-2004 for the reason, inter alia, that the affidavit-inevidence was not filed and that the plaintiff was not present, the suit was dismissed for non-prosecution.
6. ' In the case of Shahid Hussain supra, the Honourable Supreme Court after reproducing the provisions of Order XVII, rule 3, C.P.C. Observed as follows:-- "It is clear from the wording of the said rule that on the failure of a party to produce its evidence or to do any other act necessary for the purpose of the case, for which time had been allowed to him, the Court shall proceed to decide the suit forthwith. As such an order dismissing the suit under Order XVII, rule 3, C.P.C., would be deemed to be a judgment on merits, unlike an order under rule 2 of the said Order. Reference may be made to Rahim Bux and 2 others v. Mst. Nasir Khanum and another 1980 CLC 595, and Nila v. Punun AIR 1936 Lahore 385. This would, therefore, operate as res judicata between the parties barring the maintainability of the second suit on the same issue, Har Dayal v. Ram Golan AIR 1944 Oudh 39 = AIR 1936 Lahore 385. As held by Shadi Lal, C.J., in Lal Chand v. Kaka Ram AIR 1927 Lahore 562, remedy against such under would be an appeal against the decree. This view is clearly supported by the language of rule 3, of Order XVII read with the definition of Decree' in section 2(2), C.P.C. Under Order XVII, rule 3, C.P.C., the Court is required, on the failure of the party to do the needful, to proceed to decide the suit forthwith. As such, the decision is obviously an adjudication in which the Court conclusively determines the rights of the parties with regard to matters in controversy in the suit between the parties and that is why it has been held to operate as res judicata between them, barring any other suit re ling to the same controversy."
7. Though similar provision as that of Order XVII, rule 3, C.P.C. Are not made in the Ordinance, 2001 but section 7(2) of it provides that the Banking Court shall in all matters with respect to which the procedure has not been provided in the Ordinance, follow the procedure laid down in the C.P.C.
8. Thus the procedure to decide the suit in the manner provided in Order XVII, rule 3, C.P.C. Was available with the Banking Court. The order passed under this provision can only be attacked by filing an appeal and not otherwise moreso when section 27 of the Ordinance 2001 specifically bars Banking Court from revising or reviewing its own order in particular when the order operates as decision of the suit in terms of Order XVII, rule 3, C . P. C .
9. The judgment in the case of Messrs Baghpatte (supra) relied upon by the learned counsel for the plaintiff does make distinction between the two different kind of orders, and it is very ably elucidated in para.7 of the judgment as follows:-- "7. In view of the above discussion, we are of the considered opinion that there is a clear distinction between review of an earlier order and recalling one passed on account of non-appearance of a party. In the former the merits of an earlier order are considered but in the latter only the cause of non-appearance is to be taken into consideration. In the former case the power must be conferred by statute but in the latter it stems from the principles of natural justice required to be read into every law. The former is excluded by section 27 but the latter continues to remain available."
10. To my mind, although the order dated 12-3-2004 was passed on account of non-appearance of the plaintiff but such order being clothed with the mandate of provision of Order XVII, rule 3, C.P.C., it will only amount to considering of merits of the order dated 12-3-2004, which exercise can only be done in appeal.
11. ' For the foregoing reason, the application under consideration is found to be not maintainable and is dismissed.