' AYESHA A. MALIK, J. --- C.M. No. 129-B/2010. This is an application under Order 9, Rule 9 read with Section 151 of the Civil Procedure Code, 1908 (CPC) for restoration of the for non-prosecution on 23.2.2010.
2. Learned counsel for the Applicant Bank submits that the suit was filed on 17.7.2003. It was fixed for arguments on the Preliminary Leave Application (PLA) and the defendants did not come for many years. On 23.2.2010, counsel for the Applicant Bank due to miscalculation of time came to the Court late and could not attend the proceedings counsel states that on 23.2.2010 the suit of the Applicant Bank was dismissed for non-prosecution. Learned counsel argued that the suit could not have been dismissed as it was fixed for arguments on the PLA. Learned counsel places reliance on the cases titled Ghulam Qasim v. Ghulam Hussain (PLD 1992 SC 577), Abid Aziz Khan and 2 others v.
Bank of Punjab through Branch Manager (2007 CLD 997) and MCB Limited v. Messrs Baiga Paints through Proprietor and 3 others (2008 CLD 341). Learned counsel further states that since it was a miscalculation of time, the Court should restore the suit of the Bank as the Applicant's valuable rights are at stake.
3. Learned counsel for Respondents/Defendants No. 2 to 6 and 8 argued that the instant application is not maintainable. States that the order dated 23.2.2010 is a final order against which an appeal lies and not an application under Order 9, Rule 9 of the C.P.C. Further states that the conduct of the Applicant Bank is apparent from the order sheet. The case was not fixed for arguments on the PLA but the main case was fixed for arguments by the Plaintiff. Since they did not appear on several dates, the Court dismissed the suit for non-prosecution on 23.2.2010. Learned counsel further argued that the contention of miscalculation of time by the Applicant Bank is misconceived as the cause list does not reflect any fixed time when the case was to be heard. The Counsel should have been present and his contention that he came to the Court at 11.00 a.m. being the banking time, as per practice is misconceived. The learned counsel has relied upon the cases titled Javed Ahmad and another v. United Bank Limited and 12 others (2005 CLD 615) and Shahid lqbal v. Punjab Labour Appellate Tribunal (2010 PLC 237). Learned counsel further argued that the Applicant does not have any authorization appended with this application and there is no description name, title of the Applicant. Learned counsel argued that this is an independent application which has not been filed in the suit, hence an authorization is required.
4. I have heard the learned counsel for the parties and have gone through the record available on the file.
5. The basic issue in this application is its maintainability. The suit was dismissed for non- prosecution on 23.2.2010. The order sheet reflects that PLA Nos. 95-B and 96-B of 2003 were argues' on 20.5.2008. Thereafter it was fixed for arguments of the plaintiff. In the meanwhile, the plaintiff filed C.M. No. 194-B/2008. Since the plaintiff did not appear on several dates, the application was dismissed on 15.1.2010 and on the same date the main case was fixed for hearing for 23.2.2010. The order sheet shows that on 23.2.2010 no one appeared on behalf of the plaintiff. Hence the suit was dismissed for non-prosecution. From the record it is evident that the suit was not pending for arguments on the PLA. The PLAs have been argued and the case was fixed for arguments by the plaintiff. Since the Applicant Bank did not appear nor did its counsel appear on three consecutive dates being 12.11.2009, 10.12.2009 and 15.1.2010, hence the Court dismissed the suit for non- prosecution on 23.2.2010. The impugned order of 23.2.2010 is a final order in terms of Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (F10, 2001). There is no banking suit present before this Court, therefore the appropriate remedy for the Applicant is to file an appeal under Section 22 of the FIO, 2001. Section 7(2) of the F10, 2001 provides that the Banking Court shall follow the procedure laid down in the C.P.C. in respect of those matters where procedure has not been provided for in the FIO, 2001. Section 27 of the F10, 2001 provides for the finality of orders issued by the Bank and has been made subject to Section 22 of the FIO, 2001 which means a final order of the Banking Court is appealable under Section 22 of the FIO, 2001 and the application Order 9, Rule 9 of the C.P.C. is not applicable.
6.In view of the aforesaid, this application is dismissed.