MIAN SAQIB NISAR, J.---The respondent-Bank brought a suit for the recovery of an amount of Rs.85,496,449.74 against the appellants and respondents Nos.2 and 3 the appellants Nos.1 to 5, who were defendants Nos.1, 2, 4, 6 and 7 filed P.L.A. No.196-B of 2000, whereas appellant No.6-defendant No.5 filed a separate P.L.A. No.198-B of 2000 both these P.L.As. Have been dismissed vide judgment dated 10-5-2001, which is followed by a decree of the entire suit amount against the first set of the appellants, but to the extent of Rs.48,358,000, against appellant No.6-defendant No.5 along with the Mark-up. It may not be out of place to mention that the leave application of appellant No.6, has been decided, on merits, refusing to grant the decree for the full suit amount finding and elucidating of certain vital discrepancies in the statement of accounts; however, the leave application of appellants Nos.1 to 5-defendants Nos.1, 2, 4, 6 and 7 was dismissed for non- prosecution but making reference to an earlier order dated 18-4-2001. Be that as it may, the learned Banking Court, while passing the decree in the above fashion, in Para. No.8 has clearly stated "The claim in the present suit, however, is for Rs.85,496,446.74. Learned counsel for the plaintiff Bank was not in a position to provide justification for the brought forward entries appearing in the two statements of account on 1-1-2000. For this reason, it is not possible for the Court, on the basis of the existing record, to pass a decree against defendant No.5 for an amount beyond the sum of Rs.48,358,000 and any accruing charge thereon."
2. Learned counsel for the appellants by relying upon the case reported as Haji All Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited Abbottabad PLD 1995 SC 362, argued that notwithstanding that the application for leave to appear and defend filed by appellants Nos' 1 to 5-defendants Nos.1, 2, 4, 6 and 7 was dismissed for non-prosecution, yet it was the duty of the Court on the basis of the record available before it, particularly the statements of accounts, which have to support the plaint, to see whether the decree beyond the amount of Rs.48,358,000 could possibly be passed against the said appellants. As regards the decree against the appellant No.6-defendant No.5, and, for the other appellants to the extent of Rs.48,358,000, is concerned, the decree to this extent, according to him, has already been satisfied by the sale of certain properties, so he does not have any serious grouse in this regard. He also has not been able to show and establish, as to why the decree against the other appellants to the extent of the amount of Rs.48,358,000, should not be sustained as no illegality has been pointed out and the appellants have also failed in, their leave application to resist the suit to the extent of such amount.
3. As regards for the amount over and above Rs.48,358,000, we find that on the principle laid down in the case reported as Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited Abbottabad PLD 1995 SC 362, notwithstanding that the leave application of appellants Nos.1 to 5 was being dismissed for non-prosecution, yet the learned Banking Court was bound to see, if A the decree on the basis of the record available before it, to be passed against them. This aspect has not been kept into view, resultantly, the decree to the extent of the amount over and above Rs.48,358,000 against the said appellants, cannot sustain. Therefore, we affirm the decree in toto against the appellant No.6, who is defendant No.5; however, against the other appellants, the decree of the learned Banking Court is upheld to the extent of Rs.48,358,000 but for the remaining amount, it is set aside and the matter is remanded to the learned Banking Court to re-adjudicate the case afresh after hearing the appellants Nos.1 to 5, who are defendants Nos.1, 2, 4, 6 and 7 in the matter.