' JAWAD HASSAN, J.---Through the instant First Appeal Against Order under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellant seeks setting aside of order dated 25.02.2017, passed by the Banking Court-VI, Lahore whereby his application for setting aside ex parte judgment and decree dated 16.03.2009 was dismissed.
2. Learned counsel for the Appellant submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while dismissing the application of the Appellant; that application for setting aside ex parte judgment and decree was filed under section 12(2) of the Ordinance along with all the other enabling provisions of law; that the ex parte judgment and decree has been obtained on the basis of fraud and misrepresentation, as such liable to be set aside; that before proceeding on the execution of decree against the Appellant, the mandatory requirement of preliminary inquiry has totally been ignored by the Banking Court.
Learned counsel has placed reliance in this regard on the case titled Muhammad Mobeen v. A.B.N.
Amso Bank through Manager (2015 CLD 1904) and Talib Hussain v. Mst. Parveen Akhtar (PLD 2013 Lahore 129). Learned counsel further contended that the fundamental rights of the Appellant not to be condemned unheard has been violated, as such the impugned order is liable to be set aside.
3. We have heard the arguments and perused the record.
4. The perusal of record reveals that ex parte judgment and decree was passed against the Appellant on 16.03.2009. Whereas he filed application for setting aside the said ex parte judgment and decree on 10.02.2017 alleging therein that the same has been obtained on the basis of fraud and misrepresentation as he had left the residence/address on which the summonses were sent about six years prior and therefore, could not be served, as such ex parte judgment and decree was liable to be set aside. The impugned order dated 25.02.2017 reflects that the address (Rafaqat Ali, H. No, F-4, Muslim Block Scheme More Allama Iqbal Town, Lahore) provided by the Appellant on the form at the time of availing finance facility is the same as mentioned in his CNIC. Furthermore, in the suit filed by the Appellant against the Respondent Bank on 17.10.2014 the same address has also been mentioned. The record further reveals that repeated notices were issued to the Appellant on the above said address. The Banking Court in the impugned order has also observed that prior to passing ex parte judgment and decree against the Appellant, all the modes, including proclamation in the newspaper, provide under the law section 9(5) of the Ordinance were adopted to procure the service of the Appellant. The learned counsel for the Appellant has failed to controvert the said findings of the Banking Court with cogent and confidence inspiring reasons, we, therefore, see no reason to disbelieve the same.
5. From the perusal of record it transpired that the Appellant did not file application under section 12(2) of the Civil Procedure Code, 1908 (the "C.P.C."), however, if the contention of the learned counsel for the Appellant that in the caption of the application for setting aside ex parte judgment and decree, the Appellant has mentioned that the same has been filed under section 12(2) of the Ordinance along with all the enabling provisions of law, is taken into consideration even then the Appellant has failed to show from the record the necessary requirement i,e, fraud, misrepresentation and want of jurisdiction for setting aside the ex parte judgment and decree. It is a well-established principle that the heading/caption does not matter and it is only the content of the application, which has to be considered by the Courts. The honourable Supreme Court of Pakistan in case titled Asif Raza Mir v. Muhammad Khurshid Khan (2011 SCMR 1917) held as under: It is the substance, content and context of a document which determines the nature of such document and not the label or heading alone. The nature of the document so determined represents the true intention of the parties and it is this which the courts are obliged to give effect to, not the mere form of the document. The cases titled Messrs Khanzada Muhammad Abdul Haq Khattaq and Co. v. Wapda through Chairman and another (1991 SCMR 1436 at 1439); House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others (1992 SCMR 19 at 27-28) can be seen in support of this conclusion."
6. Moreover, it is well settled principle that if fraud is alleged in an application filed under section 12(2) of the C.P.C., its necessary ingredients must be pleaded, so as to subsequently prove the same. General and bald allegations of fraud and misrepresentation, could not form basis to upset a decree, otherwise validly passed by a Court of competent jurisdiction. From the material made available with this file, no case for interference in the impugned order is made out. The Appellant has failed to prove the fraud and misrepresentation by the C Respondent Bank for obtaining ex parte judgment and decree against him rather only stated in the said application that the appellant has never been served upon; that after the judgment and decree and subsequently proceedings are without mandatory requirements of law; that the summonses were issued on the wrong address. It is evident from the record that the ex parte judgment and decree was passed on the basis of banking documents appended with the plaint including the finance agreement. In Ireno Wahab v. Lahore Diocesan Trust (2016 CLC Note 85) this Court held that Applicant was required to prove that fraud and misrepresentation was procured during proceedings in the court; that alleged fraud was due to false statement and concealment of facts and that judgment was obtained on the basis of forged documents and decree was collusively obtained. The Applicant had not proved the ingredients of fraud and misrepresentation. Reliance is placed on Mst. Nasir Khatoon's case (2003 SCMR 1050) and Dadabhay Cement's case (PLD 2002 SC 500). Reliance in this regard can also be placed on the case titled Riaz Ahmed v. Bank of Punjab (2016 CLD 596) in which the Division Bench of this Court held that the application filed under section 12(2), C.P.C. Did not mention any particulars constituting fraud and misrepresentation on the part of respondent bank in obtaining the judgment and decree from the Banking Court. The fact that the respondent bank had applied to the insurance company for realization of the insurance claim had no bearing on the recovery suit filed by it against the appellants which was only concerned with the determination of liability against the appellants. It is also not necessary for a Court to always prove issues on an application filed under section 12(2), C.P. C. More so when the particulars of fraud and misrepresentation are missing.
7. So far as the contention of the learned counsel for the Appellant that the mandatory requirements of section 51 of the C.P.C. Have not been fulfilled by the Executing Court is concerned, in this regard the Appellant may file an application before the Executing Court for redressal of his grievance to this extent.
8. We agree with the findings of the Banking Court which rightly dismissed the application for setting aside of ex parte judgment and decree filed by the Appellant and do not see any illegality or perversity in the impugned order which has been passed strictly in accordance with law, as such does not warrant any interference by us. Consequently, the Appeal in hand, being devoid of any merit is hereby dismissed in limine.