Through the instant appeal the appellant has assailed order dated 26.02.2008 whereby the learned trial Court dismissed the case of the appellant.
2. Brief facts, succinctly required for the determination of the instant appeal are that the appellant filed a suit for rendition of account against the respondent-Bank before the Banking Court No, II Faisalabad. The respondent had filed PLA on 03.08.2005 and thereafter on the statement of learned counsel for the appellant/plaintiff the leave was granted to the respondent/defendant and issues were framed and the case was fixed for evidence of the appellant. Afterwards the suit had been adjourned on different dates owing to different reasons. It is stated that the main cause for the delay in recording of the evidence was the strike of lawyers' community. Thereafter, on 28.01.2008 the learned trial Court was requested by the appellant to summon the witnesses mentioned in the list of witnesses. The expense of the same was duly deposited by the appellant and the witnesses were duly summoned by learned trial Court for 26.02.2008. On the said date the summoned witnesses of the appellant failed to appear on account of which the impugned order dated 26.02.2008 was passed dismissing the suit of the appellant for non-production of evidence.
3. It is contended that the appellant had duly deposited Rs,2000/- towards the expenses for the summoning of witnesses who were to be summoned by the Court as they were Bank officials, as such there is no fault on the part of the appellant. Further, the previous opportunity for adjournment granted to the appellant was not due to his fault rather it was on account of lawyers' strike, therefore, the appellant should not suffer.
4. Learned counsel for the respondent on the other hand controverts the arguments advanced by learned counsel for the appellant stating that even witnesses of the appellant/plaintiff were not present on the said date as such no illegality has been committed by the learned trial Court while passing the impugned order
5. Arguments heard; material made available on the file perused.
6. From the perusal of the interim orders as well as impugned order it is quite apparent that prior to passing of the impugned order dated 26.02.2008 on the second last date of hearing i,e, 28.01.2008 the appellant had deposited expenses of Rs,2000/- for the summoning of witnesses as such the witnesses were to be summoned by the Court. It is apparent that on the crucial date the summoned witnesses failed to appear and the Court did not adopt any further measures for their appearance before the Court in accordance with law. Previously, opportunities had also been granted to the appellant not on account of his fault but because of lawyers' strike as is apparent from the perusal of order sheet.
7. In view of the above, this appeal is accepted, impugned order dated 26.02.2008 is hereby set aside and the parties are directed to appear, before the learned trial Court on 15.05.2010 for further proceedings.