MAULVI ANWARUL HAQ, J.-A suit filed by respondent No. 1-Bank against the appellants and the respondents Nos. 2 and 4 was decreed by a learned Judge, Banking Court-IV, Lahore, on 13.4.1998 after noting that the defendants in the case have been served but have neither ' appeared nor filed any application for leave to defend. On 2.11.1999 an application was. Filed by the appellants under Section 12(2), C.P.C. For setting aside of the said judgment and decree. The application was taken up on 3.11.1999. The several contentions raised- by the learned counsel for the appellants were noted. Without adverting to the same, the learned Judge, Banking Court, called upon the learned counsel to-demonstrate as-to how the application is maintainable with reference to the case of Emirates Bank International Ltd. v. Messrs Qasim Brothers and others (PLD 1998 Karachi 338 and after hearing proceeded to hold that the application is not competent and dismissed the same on the same day.
2. The F.A.O. ,was being fixed before a learned Division Bench of this Court when on 23.11.2004 the matter was referred to the Hon'ble Chief Justice for constitution of a Full Bench to resolve the controversy in view of divergent views with regard to the maintainability of an application . Under Section 12(2), C.P.C. Before the Banking Court. The Hon'ble Chief Justice referred the matter to this Bench.
3. Learned counsel for the appellants relying Upon the case of Mian Munir Ahmed v. United Bank Limited and 3 others (PLD 1998 Karachi 278) urges that the application filed by the appellants was competent. Conversely, learned counsel for respondent No/ 4/L.Rs. Places primary reliance on the case pf Messrs Gold Star International and another v. Muslim Commercial Bank Limited (2000 MLD 421) to support the impugned order. No one . Has turned up for the respondent/decree-holder- Bank 1 who is represented along with respondents Nos. 5, 6 and 8 by a learned counsel whose name stands duly printed in the cause list for today.
4. We have given some thought to the respective contentions of the learned counsel for the contesting parties.
We have examined the said judgments delivered by the Division Benches of the learned Karachi High Court as also this Court. We have also gone through the said case of Emirates Bank International Ltd. Cited by the learned Judge, Banking Court, in the impugned order. This judgment was delivered by a learned Single Judge, in Chamber, holding that the application under Section 12(2), C.P.C. Is not competent to set aside a judgment or an order of a Banking Court.
5. This matter had remained pending for one reason or the other. In the meanwhile in the case of Muhammad Yaqoob and others v. Messrs United Bank Limited and others (2007 SCMR 922) the said judgments in the case of Messrs Gold Star International and another as also in the case of Mian Munir Ahmed came up for examination by the Hon'ble Supreme Court of Pakistan. After observing that provisions of Code of Civil Procedure, 1908, continued to be applicable being not ousted by any provision of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and referring to the relevant portions of both the said judgments, the appeal filed by the appellant whose application under Section 12(2), C.P.C. Had been dismissed by this Court, was allowed and directions were issued to decide the application in accordance with law . f and merits of the case after hearing all concerned. We may further note here that regarding judgment of this Court in the case of Messrs Gold Star International and another, it was observed that matter has been dealt with on merits and cogent reasons have been recorded for dismissing the application.]
6. Respectfully following the said dictum and further in view of the well-settled proposition that a Court including a Court established under a special enactment would always be competent to take cognizance of any fraud, mis-representation or lack of jurisdiction in the matter of proceedings pending or decided by it, we allow 'this F.A.O. And set aside the impugned order dated 3.11.1999. The result would be that the said application filed by the appellants shall be decided by the learned Banking Court after hearing all concerned on its merits.
7. A copy of this judgment be immediately remitted to the said learned Judge, Banking Court, Lahore