On 31-3-2003, the respondent-Bank filed a suit for recovery of Rs. 14,85,701.70 against the appellants and respondents Nos.2 and 3. The defendants of the case filed PLAs within time, which were replied to and earlier the matter was argued before the Court by both sides, but the judgment was kept reserved and in the meantime, the learned Presiding Officer was transferred, therefore, the necessity of re-hearing the matter was felt and the PLAs, which were fixed for hearing were dismissed for non-prosecution and the ex parte decree dated 17-5-2004 was passed. The appellants moved an application on 1-7-2004 for setting aside of the decree on the ground, that they erroneously noted down the date as 26-6-2004 instead of 17-5-2004 and when they came to the Court on this later date, it transpired that PLAs had already been dismissed for non-prosecution on, 17-5-2004 and the ex parte decree has been passed accordingly against the appellants. This application has been summarily rejected by the learned Banking Court holding, that it is not competent under the Banking Ordinance, 2001, hence, this appeal.
2. Learned counsel for the appellants by relying upon Shafis Pak Associates (Pvt.) Limited through Chief Executive and another v. Habib Bank Limited and 3 others 2002 CLD 379 Lahore and Syed Rashid Hussain v. Bank of Punjab through Managing Director and another 2005 CLD 1823 Lahore, argues, that in similar circumstances, such application was also to be competent and either it was accepted by the Court in appeal or the matter was remanded to the Banking Court for decision on merits.
3. When confronted, learned counsel for respondent No.1 states, that the appellants were negligent and deliberately failed to appear before the Court and the Court after providing them a number of opportunities, has no option except to dismiss the applications. It is further submitted, that there was no substance in the PLAs, filed by the appellants, and resultantly decree had to follow. Under section 22(5) of the Ordinance, an appeal has been provided against an ex parte decree; resultantly; application for setting aside has been considered by the legislature itself to be not maintainable.
4. We have heard learned counsel for the parties and perused the record. Learned counsel for respondent No.1 has not been able to show as to under what provision of the Banking Ordinance, the Court could proceed to pass an order for the dismissal of PLAs. When asked, he submitted that under the inherent jurisdiction, if that being so, obviously the Court has the inherent powers to restore the application also; besides, the suit was not fixed for hearing on the date; it is only the application for PLAs fixed, when the suit was not fixed. We are surprised as to how the decree could be passed in favour of the respondents. Resultantly, this appeal is accepted and the impugned order dated 4-10-2004 is set aside with the result that the application of the appellants for setting aside of ex parte decree shall be deemed pending before the Banking Court. If some reply has been filed by the respondent Bank, the Court shall decide the matter, after providing an opportunity to the appellants to lead evidence and if the appellants able to show sufficient cause for non-appearance on the date, when the application was dismissed, obviously, the law shall follow. The appeal is allowed subject to payment of Rs.5,000, as costs to be deposited by Mr. Shahid Ikram Siddiqui, Advocate for the appellants in Edhi Centre.