The appellants through the instant appeal has called in question order dated 13-7-2005 of Judge Banking Court-II, Faisalabad by virtue of which the application filed by the appellants for setting aside ex parte decree dated 3-3-2005, was dismissed.
2. The facts giving rise to this appeal are that the respondent, Orix Leasing Pakistan Limited, filed a suit for recovery against the appellants in the Banking Court-II, Faisalabad. In response to summons only appellant No.2 filed an application for leave to appear and defend the suit but thereafter absented himself, hence the appellants were proceeded against ex parte on 14-7-2000.
Subsequently, the learned Banking Court decreed the suit, against the appellants jointly and severally, vide judgment dated 3-3-2005. The appellants filed an application under Order IX, rule 13, C.P.C. For setting aside the ex parte decree, which was treated by the learned Banking Court under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and dismissed the same through the impugned order being barred by time, hence this appeal.
3. Learned counsel for the appellants has contended that the Banking Court has granted liquidated damages, which are not legally permissible. In support of this contention learned counsel has referred to the case of Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Limited, Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596. Learned counsel then submitted that there were two lease agreements, each gave a separate cause to the respondent to file a separate suit, thus the suit suffers from misjoinder of causes of action. The claim of the respondent is vague and the decree was procured fraudulently. The appellants have been condemned unheard and the law leans in favour of adjudication on merits. Learned counsel while summing up the arguments has referred to the case of Messrs C.M. Textile Mills (Pvt.) Ltd. Through Chairman and 5 others v. Investment Corporation of Pakistan 2004 CLD 587 to contend that the Court even if the appellants had been proceeded against ex parte, was not absolved of its responsibility to look into the genuineness of the claim of the plaintiff. The Court has not applied its couscous mind while passing the ex parte decree.
4. Learned counsel for the respondent, on the other hand, has submitted that the application of the appellants was under Order IX, rule 13, C.P.C., which was not maintainable under the eye of law. The right course for the appellants was to assail the ex parte decree in appeal. The appellants had deliberately avoided to appear and the application filed by the appellants was rightly dismissed being barred by limitation.
5. Heard learned counsel for the parties and the re; ord perused.
6. The submissions made by the learned counsel for the appellants mainly relate to the merits of the case while through the instant appeal, the appellants have assailed order dated 13-7-2005 whereby the learned Banking Court dismissed their application for setting aside ex parte decree dated 3-3-2005. We cannot stretch our jurisdiction so far to reopen the controversy, which stands resolved and has attained finality as no appeal against the decree was filed within the period of limitation, prescribed by law.
7. Coming to the order dated 13-7-2005, learned Court while passing the impugned order has observed that appellant No.2, Shoukat Ali, appeared before the Court, filed application for leave to defend the suit and thereafter the case was adjourned ten times and ultimately on 18-3-2003 replication was filed by the respondent. Thereafter it was adjourned four times for arguments on PLA and finally on 14-7-2003 when nobody entered appearance on behalf of defendant No.2, he was proceeded against ex parte. Learned Banking Court also considered that defendant No.6, i.e. Appellant No.1 entered appearance but failed to file application for leave to defend the suit. It has been asserted by the appellants in the application under Order IX, rule 13, C.P.C. That the appellants were not served and they have got the knowledge of ex parte decree on 25-3-2005. The application is supported by an affidavit of Shaukat Ali, who has appeared before the Court and filed application for leave to defend the suit. The application under Order IX, Rule 13, C.P.C. Is not supported by the affidavit of other appellants. The affidavit sworn in is contrary to the facts and record of the learned trial Court. The Court, has rightly observed that the application has not been moved within 21 days of the ex parte decree and also not accompanied by an application for condonation of delay. The application being barred by limitation was liable to be dismissed.
Nothing has been urged in the application as to when the appellants have come to know of the ex parte decree. Mere mentioning of a date of knowledge and that too one day prior to the filing of the application is vague and does not prove by any stretch of imagination that the appellants attained knowledge of the ex parte decree on 25-3-2005. This bald and vague assertion even otherwise is not supported by an affidavit of the appellants. Learned trial Court treating the application under Order IX, rule 13, C.P.C. As under section 12 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 has rightly dismissed it being barred by limitation.
8. For what has been said above, there is no illegality or infirmity in the impugned order. This appeal has no force and is accordingly dismissed.