1. NADEEM AKHTAR, J.---1 & 2. Defendants 3 and 4 and their learned counsel are called absent. If they do not appear on the next date, these applications shall be dismissed for non-prosecution.
3. This application has been filed by defendants 1 and 2 under Order IX, Rule 7 read with section 151, C.P.C. for setting aside the order dated 19.12.2014, whereby their application for leave to defend bearing C.M.A. No.929/2012 was dismissed for non-prosecution. The application is supported by the affidavit of the defendants counsel wherein he has stated that on the relevant date he was busy before another Bench of this Court in three matters, details whereof have been disclosed by him in paragraph 2 of his affidavit. It has also been stated by the learned counsel in his affidavit that he was present before this Court on the relevant date, but when this matter was taken up he had to rush before another Bench to-attend some other matter.
2. ' I have examined the power filed on behalf of defendants 1 and 2 which has been signed by four advocates. Learned counsel submits that three out of the said four advocates are from Lahore and the senior counsel was busy on the relevant date in a part-heard matter before the learned Lahore High Court. It was the fourth counsel who was to attend this matter on the relevant date when his case was called before another Bench. It is urged that the absence of the learned counsel at the relevant time was neither intentional nor deliberate, but was due to his professional preoccupation before another Bench. It is further urged that defendants 1 and 2 have raised substantial questions of law and fact in their application for leave to defend which may be heard and decided on merits in the interest of justice. On the other hand, learned counsel for the plaintiff has opposed this application by submitting that defendants 1 and 2 have all along remained negligent in pursuing their application, and also on the ground that the order of dismissal passed on 19.12.2014 cannot be reviewed by this Court in view of the bar contained in Section 27 of the Financial Institutions (Recovery of Finances)Ordinance, 2001 (' the Ordinance').
3. ' Section 27 of the Ordinance provides that no Court or other authority shall revise, review, call, or permit to be called, into question any proceedings, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under the Ordinance. It is clear from a bare reading of this Section that the bar contained therein shall apply to Courts and authorities other than the Banking Courts.
4. The said bar is, however, subject to the provisions of section 22 of the Ordinance, whereunder an appeal against the judgment, decree, sentence or final order of a Banking Court may be preferred by the aggrieved person to the High Court within thirty days of such judgment, decree, sentence or final order. The proviso to section 27 ibid provides that the Banking Court may, on its own accord or on an application of any party, and after notice to the other party or all parties, as the case may be, correct any clerical or typographical mistake in the judgment, decree, sentence or order passed by it. This shows that only such clerical or typographical errors could be corrected by the Banking Court under section 27 ibid which do not change the nature or fate of the judgment, decree, sentence or order. Thus, it is the proviso to section 27 ibid that bars the Banking Court from revising or reviewing its own judgment, decree, sentence or order, and the power or jurisdiction of the Banking Court under the said proviso is limited only to the extent of correcting clerical or typographical errors in its judgment, decree, sentence or order. It may be observed that in view of the above specific provision in the Ordinance, which is a special law, the general provisions of correcting accidental slips and omissions in a judgment, decree or order provided in section 152, C.P.C., shall not apply to the Banking Courts.
5. ' At present the question before me is whether the order passed on 19.12.2014 dismissing the application for leave to defend for default, can be recalled or not by this Court acting as the Banking Court under the Ordinance. The said order is certainly not a judgment, decree or sentence in terms of section 27 ibid. Therefore, it will have to be examined whether or not the said order is an order as contemplated in section 27 ibid. The word "order" has been defined in section 2(4), C.P.C. as the formal expression of any decision of a Civil Court which is not a decree. It has been defined in P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd Edition, as a conclusion of a Court or an authority or a tribunal upon a motion; it must mean a decision which affects the merits of the question between the parties by determining some right or liability and such a decision must be either final, preliminary or interlocutory; and, "order" in legal parlance would always indicate some expression of opinion which is to be carried out or enforced.
6. ' In my humble opinion, the bar contained in section 27 ibid is applicable only to such speaking orders, judgments, decrees and sentences that are passed on merits after hearing the parties. This view expressed by me is supported by section 12 of the Ordinance, which provides that even a decree passed exparte against the defendant under subsection (1) of section 10 of the Ordinance can be set aside by the Banking Court on an application filed by the defendant as provided in the said subsection. The word "order" appearing in Section 27 ibid implies an order through which a formal determination of the rights and liabilities of the parties is made by the Court. It is a matter of record that the order passed on 19.12.2014 is a non-speaking order without any reasons, and it was not passed on merits as the application was simply dismissed for non-prosecution without any hearing. The said order cannot be termed as a decision as it neither decided rights of the parties on merits nor is it a judgment, decision or decree liable to be challenged in appeal. Thus, in my considered opinion the bar contained in section 27 ibid will not be attracted in this case as the provisions thereof do not bar the Banking Court from exercising its inherent powers of restoring the application for leave to defend which was dismissed for non-prosecution without touching merits of the case. I may clarify here that if a Suit is dismissed by the Banking Court for non-prosecution, such order becomes a final order as the Suit stands finally disposed of, and in such an event, the same can be challenged only by way of an appeal.
7. ' It may be noted that the defendants have filed this application under Order IX, Rule 7, C.P.C. read with section 151, C.P.C. Order IX, Rule 7, C.P.C. provides that where the Court has adjourned the hearing of the Suit ex parte and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise, be heard in answer to the Suit as if he had appeared on the day fixed for his appearance. Since the provisions of C.P.C. have been made applicable to Suits under this Ordinance, the order in question dismissing the application for non-prosecution can be set aside as the learned counsel for the defendants, in my opinion, has assigned good cause for his nonappearance on the relevant date. He undertakes not to seek any adjournment and to argue his application without fail on the next date. It is well-settled that the principal object of legal formalities and procedural provisions is to safeguard the interest of justice, and the procedural provisions, unless insurmountable, should not be allowed to defeat the ends of justice; the prescribed procedure, which is always for the purpose of doing justice between the parties, should not come in the way of doing substantial justice; the most important duty of the Courts of law is to do justice between the parties and in the absence of any express power, normally relief to a party should not be refused on technical grounds; and, Civil Courts, being Courts of both law and equity, should dispose of cases on merits rather than on technical considerations. If any authority is needed in support of the above view, the recent case of Anwar Khan v. Fazal Khan, 2010 SCM R 973 may be seen.
8. ' In view of the above, the application is allowed subject to deposit of Rs. 10,000.00 (Rupees ten thousand only) by defendants 1 and 2 as costs with the Sindh High Court Clinic within seven (07) days.
9. ' By consent, adjourned to 07.10.2015.