' SYED AKHLAQ AHMAD, J.--- This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been filed against the judgment and decreed dated 27-10-2009 passed in favour of Grays Leasing Limited through Manager, Lease Administration/respondent No,2/plaintiff and against the appellants/defendants.
2. Facts giving rise to this appeal are that on 12-12-2007 a suit for recovery of Rs,22,716,752.00 (Rupees two crore twenty seven lac sixteen thousand seven hundred and fifty two) along with cost of funds, cost of suit and liquidated damages till the realization was filed by Grays Leasing Limited through Manager/respondent No,2/plaintiff against the appellants/ Bhatti Cotton Links through Muhammad Iqbal Bhatti and two otheRs, On 6-2-2008, Muhammad Iqbal Bhatti/appellant moved an application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to appear and defend. On 4-7-2008, Grays Leasing Limited/respondent/ plaintiff in the suit filed an application to obtain ex parte order against Mst. Parveen Akhtar (defendant No,3 with the contention that she has made a deliberate default in submitting application for leave to appear and defend and it is incorrect that she was never served. Learned Judge Banking made a written order on the said application that it be presented before him on 30-7-2008 which was the pre-fixed date of hearing. On this date, a representative of the appellant and also junior counsel were present before the court. At that time, counsel for plaintiff was absent. On the first pukar' learned Judge Banking put the file aside to wait the arrival of the counsel for Grays Leasing Limited/respondent/plaintiff. At the same time, representative and the counsel for Muhammad Iqbal Bhatti/appellant were informed that no proceedings were likely to take place in the application for leave to appear and defend. Learned Judge Banking himself stated that logically the application made by the Bank/respondent/plaintiff for passing an ex parte order against Parveen Akhtar/appellant was to be decided first and only then he could take up the other application for leave to appear and defend. Thereafter, the learned Judge Banking Court called the case at some later time on the same date. Neither the representative of Muhammad Iqbal Bhatti/appellant nor his counsel were present as they had already been told that no proceedings will take place on the application for leave to appear and defend. However, for the reasons best known to the learned Judge Banking Court, he proceeded to dismiss the application of Muhammad Iqbal Bhatti/appellant on merits without even placing him ex parte. It is stated that the absence of Muhammad Iqbal Bhatti/appellant on the second call is directly ascribable to the observations made by the learned Judge Banking Court that the application for leave to appear and defend would not come up for adjudication on 3-7-2008. It is noteworthy that Muhammad Iqbal Bhatti/appellant has never been placed ex parte. Even then the learned Judge Banking Court thought it fit to hear the arguments from the side of the respondent/plaintiff. Simultaneously another order was also made whereby Parveen Akhtar/defendant was placed ex parte. In the same order, the application for leave to appear and defend filed by Muhammad Iqbal Bhatti/appellant has been dismissed without hearing him. It is for the reason that the impugned order dated 30-7-2008 was challenged as an action without lawful authority by means by Writ Petition No,10071 of 2008 which was dismissed as non-maintainable on 13-8-2008. Thereafter C.P.L.A. No,1427-L of 2008 was filed in the Supreme Court of Pakistan which is pending there. On 8-8- 2008 Parveen Akhtar/appellant filed an application for setting aside all adverse orders made against her at her back in which correct address on which she permanently resides was also given.
However, on 27-10-2009, the impugned judgment and decree was passed in the aforesaid suit.
3. Learned counsel for the appellants contends that Muhammad Iqbal Bhatti/appellant/defendant has been condemned unheard. Learned Judge Banking Court had himself informed the representative of Muhammad Iqbal Bhatti/appellant and his counsel that his application for leave to appear and defend will not be taken up on 30-7-2008. Thus, the absence of the appellant at the second call is directly ascribable to the learned Judge Banking who himself made observation at the first call that only the application moved by the Bank-respondent for placing Parveen Akhtar/appellant/ defendant ex parte would come up for hearing. In any case, no reason whatsoever has been stated in the order dated 30-7-2008. Dismissal of the application for leave to appear and defend made by Muhammad Iqbal Bhatti/appellant cannot be sustained as it has been passed without reference to any of the grounds taken in the aforesaid application. It is not a speaking order. A number of solid points of law were raised each one of which deserved to be addressed but they have been simply ignored. It is, therefore, prayed that the impugned judgment and order dated 27-10-2009 be set aside as a whole. The impugned order dated 30-7-2008 be set aside by virtue of which the application for leave to appear and defend was dismissed at the back of Muhammad Iqbal Bhatti/appellant without applying judicial mind to any of the legal points taken therein and the case be remanded to the learned Judge Banking Court with the direction to treat the application for leave to appear and defend as pending and to decide it afresh.
4. On the other hand, learned counsel for Grays Leasing Limited/respondent No,2/plaintiff opposed this appeal and strongly defended the impugned judgment and decree passed by the learned Judge Banking Court Lahore.
5. Order dated 30-7-2008 passed by the learned Judge Banking Court reads as under:- {{URDU TEXT}}
6. Perusal of the above order passed by the learned Judge Banking Court shows that no reason whatsoever has been stated in this order while dismissing the application. Muhammad Iqbal Bhatti/appellant has never been proceeded against ex parte. Application for leave to appear and defend filed by Muhammad Iqbal Bhatti/appellant has been dismissed without reference to any of the grounds taken in the aforesaid application. It is, thus, not a speaking order in any sense.
Muhammad Iqbal Bhatti/appellant has been condemned unheard. He has not been given a fair and proper opportunity of hearing on his application which was also not fixed for hearing on this date 30-7-2008. The judgment and decree does not reflect application of mind by the court to the grounds set out in the application for leave to appear and defend filed by the appellant. Learned Judge Banking Court has acted in the matter with unholy haste while passing the ex parte decree in favour of the Bank/respondent No,2/plaintiff.
' In view of above, we allow this appeal and set aside the ex parte judgment and decree dated 27- 10-2009 as well the order dated 30-7-2008 by virtue of which application for leave to appear and defend was dismissed at the back of Muhammad Iqbal Bhatti/appellant. The case is remanded to the learned Judge Banking Court No,IV, Lahore. The suit filed by Grays Leasing Limited/respondent No,2/plaintiff as well as application for leave to appear and defend filed by Muhammad Iqbal Bhatti/appellant will be deemed to be pending with the direction to the learned Judge Banking Court-IV, Lahore to decide the same afresh in accordance with law.
7. Copy of this judgment be immediately sent to the learned Judge Banking Court No,IV, Lahore.