' NASIM SIKANDAR, J.---On 5-10-2005 the appellant Messrs MCB Bank Limited, a Banking Company incorporated under the Banking Companies Ordinance, 1984 and having its Principal Office at I.I.
Chundrigar Road, Karachi filed a suit for recovery of Rs,5,47,317.01 before the Banking Court, Sargodha. On 2-1-2006 the learned trial Court in the presence of the counsel for the plaintiff/present appellant proceeded
2. According to the learned counsel for the appellant an application for setting aside the dismissal- in-default order was moved on the same day viz. 17-2-2006 at about 11-00 Learned trial court after seeking reply and tearing the Parties by way of order dated 16-5-2006 declined the application. It B was observed, that under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the order of dismissal was final and, therefore, the Banking Courts were not permitted to revise or review or recall the same.
3. By way of this first appeal against order under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the said order of the Banking Court, Sargodha dated 16-5-2006 is sought to be challenged inter alia on the ground that an application for setting aside is competent before a Banking Court and that such an application cannot be thrown out merely on the basis of the appeal provisions contained in section 22 of the said Act.
4. In support of his submissions, learned 'counsel for the appellant relies upon the ratio settled in re.
Messrs Baghpotee Services (Private) Ltd. And others v. Messrs Allied Bank of Pakistan Ltd. 2001 CLC 1363; re. Muhammad Iftikhar through Special Attorney v. Zarai Taraqiati Bank Limited through Chairman and another 2005 CLD 1454; re. Muslim Commercial Bank Limited v. Tariq Saeed and another 2004 CLD 920 and re. Muhammad Naveed Hussain v. Small Business Finance Corporation/SME Bank Ltd. And 2 others 2006 CLD 1486.
5. After hearing the learned counsel for the parties and keeping in view the ratio settled in the case laws relied upon for the appellant at the bar we -are inclined to agree that the Judge Banking Court is possessed with the competence to recall or set Caside an order passed on account of non-appearance of a party. In re. Messrs Baghpotee Services (Private) Ltd. And others (supra), a Division Bench of the Honourable Karachi High Court with reference to the identical provisions of section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 distinguished the meanings of the words "review" and "recalling" of the order. According to their Lordships the power of review must be conferred by statute but in case of recalling an order the powers sterns from the principles of natural justice which were required to be read in every law.
In the second case re. Muhammad Iftikhar (supra) a Division Bench of this Court refused to sustain an order recorded by the Banking Court in similar situation when the suit was dismissed for non- prosecution on the date it was fixed for reply to the application for leave to appear and defend the suit. Accordingly, the Honourable Division Bench restored the suit filed by the borrower and remanded the case to Banking Court for deciding application for leave to appear and defend the suit afresh. In the third case re. Muslim Commercial Bank Limited (supra) another Division Bench of this Court found that where the application for restoration was promptly made by the appellant and the suit was dismissed at the initial stage there being no rebuttal to the affidavits filed by the appellant with the application for restoration, technicalities should not have been allowed to defeat the ends of justice. In the last case re. Muhammad Naveed Hussain (supra) a Division Bench of this Court in the perspective of the relevant provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 interpreted section 9 and Order IX, Rules 3, 4 and 7 of the Civil Procedure Code and concluded that dismissal of a suit on a date fixed for filing of reply by the plaintiff was not valid as the suit was not fixed for "hearing" on such date.
6. In view of the aforesaid authoritative pronouncements and ,the arguments of the learned counsel for the appellant we are of the view that the learned trial Court ought to have recalled the ex parte order instead of non-suiting the lender bank on technicalities. The dismissal of the application for recalling of order was totally uncalled for when the proceedings to take place were limited only to filing of reply to the amended petition for leave to defend. All the more so, when the application was filed on the same day though in the later part.
7. This appeal is accordingly allowed. The order of the learned trial Court/Judge Banking Court, Sargodha dismissing the suit is set aside. 1-le will proceed from the stage as an 17-1-2006.