1. ' MRS. QAISER IQBAL, J.---By this order I propose to dispose of an application under Order VII, Rule 11 of the Code of Civil Procedure, filed by the Defendant inter alia on the following points:--
(1) That in the year 1995 Habib Bank Limited had filed suit bearing No,198/1995 for recovery of Rs,60,818,780/90 under Banking Tribunals Ordinance, 1984 before the Banking Tribunal No,2, Karachi, which was dismissed for non-prosecution and subsequently an application for restoration was filed. In the meanwhile, Banking Companies (Recoveries of Loans, Advances, Credits and Finances)
2. Act, 1997 was promulgated and Suit No,198/1995 was transferred from Banking Tribunal to this Court, numbered as Suit No,418/1998.
(2) The plaintiff filed an application for restoration along with an application under section 5 of the Limitation Act, which was dismissed vide order dated 19th August 1998 and no appeal waspreferred against the said order, thus attainedfinality. It is urged that the relief claimed and the question raised in earlier suit cannot be raised in the present suit. On account of the application of doctrine of res judicata in view of order dated 19th August, 1998 a fresh suit on the same cause was filed in respect of the finances. In this connection, reliance is placed in the case of Aziz Ahmad and others v. Mst. Hajira Bibi and another (1987 SCM R 527), rule enunciated is that "no one was to be twice vexed for the same cause of action" dismissal of suit for nonappearance of plaintiff bars fresh suit.
3. Mere fact that in the first suit the applicants did not seek relief in respect of property in Faisalabad would not make the cause of action in the second suit a different one, enunciated by not seeking relief in respect of property in Faisalabad in the suit filed at Bahawalpur, the appellants had given up their claim to the said property and the second suit would be hit by the bar contained in Rule 2(2) Order XI, CPC. The same rule was enunciated in the case of Ijaz Hussain Sheerazi v. Secretary Local Government and Development, same rule enunciated in the case of Bashir Ahmad and 13 others v. Maula Bux and others (1999 CLC 1243) (sic) and in the case of Sikandar All v. Abdul Rehman reported in (1996 CLC (Karachi) 1273) where it is held that the proper course for petitioner was to make an application under Order IX, Rule 9, C.P.C., for seeking set aside of dismissal, on showing sufficient cause for non-appearance on specified date when suit was called for hearing.
4. The petitioner failed to resort such remedy but filed fresh suit on the same cause of action which in terms of Order IX, Rule 9, C.P.C. Was barred for the same had been based on the same cause of action and between the same parties. Order in question, was not shown to be either illegal or suffering from irregularity amounting to illegality.
(3) The learned counsel for the plaintiff has contended that the instant suit is time barred by virtue of Articles 69 & 85 of the Limitation Act 1908 as the last entry shown in the statement of account is of the year 1995. The plaintiffs have pleaded that on account of promulgation of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 fresh period of limitation commenced against the defendant w,e,f, 2-6-1997 therefore, the instant suit is within time. It is urged from the other side that right to file a fresh suit on the same cause of action by the plaintiff has extinguished as the finance facility became a past and closed transaction by virtue of order dated19th August, 1998 therefore, the suit is liable to be dismissed. In support of the above contention, reliance is placed on the case of Khalid Qureshi and 5 others v. United Bank Limited, LI, Chundrigar Road, Karachi (2001 SCMR Supreme Court at pages 110 & 111), the apex Court has held as under:- "The use of word 'past transactions' excluding the word 'closed' is indicative of the fact that the past transactions regarding which no suit could be instituted or settlement made can be brought before the Banking Court and a fresh cause of action would be available for the purpose of limitation filed on the date when the said Act was promulgated. Both the grammatical and logical interpretation of section 22(2) of the Act would lead to draw the only inference that the rights which had extinguished were never revived and real intention which by exclusion of word 'closed' in section 22(2) of the Act also finds support seems to save the financial institutions/banks from huge loss enabling them to file their claims (not adjusted, decided or settled previously) on the basis of fresh cause of action made available where right to sue existed on the date of promulgation of the Act by virtue of the section 22 of the Act."
(4) Reliance is also placed on the case NDFC v. Anwar Zaib White Cement (1999 MLD 1899). It is urged that the instant suit is not maintainable as the same did not fulfil the three preconditions laid down in section 8 of the Act, 1997 therefore the plaint is liable to be rejected with costs.
(5) The learned counsel for the plaintiff has contended that the Act 1997 was promulgated on 2nd June, 1997 while the plaintiff has filed the suit was filed on 29th March, 2000 therefore, suit as framed and filed is maintainable in law as it was filed within the period of three years from the date of promulgation of the Act 1997. The doctrine of res judicata will not be applicable as the earlier suit was not decided on merits, the cause of action terminated, stands revived. In support of the above contention, reliance is placed in the case of NDFC v. Anwar Zaib White Cement Limited. It is pleaded that the claim of the Plaintiff was not a past and closed transaction as on 29th March 2000 when the plaint was filed by the plaintiff, the period of limitation of three years had not expired. Mr. A.R.
5. Akhtar has also referred to the case of Allah Ditta and another v. Rehmat Ali (PLD 1991 Supreme Court Page 540) on the premises that the suit of the Plaintiff is maintainable and fresh suit is not barred under the law after the disposal of suit under Order IX, Rule 4 of Civil Procedure Code.
(6) I have considered the arguments advanced at bar. The learned counsel appearing for the plaintiff has contended that the transaction in suit cannot be termed as past and closed transaction as the suit bearing No,198/1995 was not decided on merits, it was dismissed under Order IX, Rule 4, C.P.C, therefore, the principle of res judicata would not come into operation as is laid down by Supreme Court in case of Allah Ditta and another v. Rehmat Ali referred supra. The other side has categorically pleaded that on account of dismissal of suit for non-prosecution the restoration application was also dismissed, it attained finality against which no appeal was preferred therefore; a fresh suit on the same cause of action is clearly barred under the law. The learned counsel for the plaintiff has contended that the protection under section 22(2) of the Act, 1977 was not available to the plaintiff as the previous suit was dismissed on 14-9-1996 the application under Order IX, Rule 4, C.P.C. Was presented on 19-8-1998 dismissed on 29-3-2000, leave was granted on 28-3-2001, issues were framed on 30-1-2002' and by consent Commissioner was appointed for recording of evidence of the parties on 18-12-2002, the suit against the defendant is filed on the basis of the financial accommodation, awarded on mark-up basis under the terms of personal guarantees, therefore, there is no legal bar to file fresh suit. The point of limitation is a mixed question of law and facts, which can be determined on The basis of the evidence led by the parties at the trial. The perusal of the order whereby an application under Order IX, Rule 4, C.P.C., in High Court of Sindh in Suit No, 418 of 1998 was dismissed clearly indicates that the application was dismissed being barred by law of limitation with the direction that the plaintiff may, however, file fresh proceedings if permitted in law. In the present case issues have been framed included the question of the limitation, therefore in my humble opinion the plaint cannot be summarily rejected without recording the evidence of the parties. In this connection reliance is placed on (2003 SCM R 1284) and (1999 SCM R 2396).
6. ' The upshot of the above discussion is that the defendant's application under Order VII, Rule 11, C.P.C., is dismissed with no order as to costs.