' This is an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance, 2001) and seeks the setting aside of the order dated 31.1.2013 passed by a learned Single Bench of this Court in the exercise of special jurisdiction under the Ordinance, 2001.
2. This Order shall also decide a connected appeal RFA No,343 of 2013, which is based on similar facts and arises out of an order of even date in terms which is in part materia with the instant appeal.
3. The impugned order dated 31.1.2013 disposed of C.M. No,834-B of 2012 which was an application filed under Order VI, Rule 17 of the Code of Civil Procedure (CPC) seeking an amendment of the plaint in the suit C.O.S. No,196 of 2009. The basis for seeking an amendment was a settlement agreement dated 5.3.2012 executed between the parties and which fact is not denied. An amendment was sought in the plaint so as to incorporate the default amount of markup which the plaintiff-Bank claimed in respect of the defendants/respondents as overdue on account of the default in the terms of the settlement agreement. The learned Single Bench not only dismissed the application for seeking an amendment but also in the same order proceeded to declare the suit having become infructuous and disposed of the suit accordingly.
4. We have heard the learned counsel for the parties and do not find the latter part of the impugned order to be based on a correct appreciation of law. The learned Single Bench returned a finding that the settlement agreement did not have any nexus with the suit pending before this Court as also that the terms of the settlement agreement did not make a mention regarding the suit which was pending before the learned Single Bench. Having returned this finding, the learned Single Bench while dismissing the application, in the same vein proceeded to dispose of the suit as well precisely on the ground that the parties had settled their dispute without the permission of the Court. This was a contradiction in terms. Moreover, the suit which was pending before the learned Single Bench was to be decided on its own merits and there is no concept of a suit being disposed of in the manner in which it has been done by the learned Single Bench vide the impugned order.
However, we do not find any substance in the submissions made by the appellant with regard to the refusal by the learned Single Bench to allow the necessary amendment to be made in the plaint. If the appellants had a cause of action under the settlement agreement, certainly a fresh suit could be brought in respect of that default and there was no cause for seeking an amendment in the plaint of the pending suit.
5. In view of the above, this appeal is partly allowed. The impugned order as regards the dismissal of the application for seeking an amendment in the plaint is sustained. However, the part of the order by which the suit was disposed of as having become infructuous is set aside and the matter is remanded to the learned Single Bench for decision of the suit C.O.S. No,196 of 2009 on its own merits. The respondents shall be at liberty to seek the rejection of the plaint or the dismissal of the suit in case the respondents consider the matters between the parties to have been settled by the settlement agreement. However, that will be for the learned Single Bench to determine on its own merits.