ROZI KHAN BARRECH, J.---This High Court Appeal under section 22 of Financial Institution (Recovery of Finances) Ordinance, 2001 (the "Ordinance ") filed against the ex-parte judgment and decree dated 23.05.2017 (hereinafter "the impugned Judgment ") passed by the learned Judge Banking Court Balochistan, Quetta, (the "trial court") whereby the learned trial court passed an ex-parte decree in favour of the respondent/plaintif f.
2. Brief facts for the disposal of this appeal are that the respondent/plaintif f filed a suit against the appellant for recovery of Rs.20,14,734/-.
3. After registration of the suit, notices were issued to the defendant/appellant and publication was also made in the local press viz the daily newspaper Century Express Quetta dated 20.04.2016, and the Frontier Post Quetta of the even date. Subsequently , the appellant/defendant did not appear in person before the court, and on 24.02.2017, the learned trial court passed ex-parte judgment against the appellant/defendant and in favour of the respondent/plaintif f. Hence this appeal.
4. We have heard the arguments of both the sides and perused the record.
5. The learned counsel for the appellant/defendant stated that the appellant was never served with the court notice and had no knowledge of the institution of the suit, therefore, he could not appear before the learned trial court to obtain leave within the prescribed time. The reason stated by the learned counsel for the appellant was that he came to know about the filing of the recovery before the banking court only the representative of the bank called the appellant on his cell phone, and he deposited an amount of Rs.14,00,000/- in favour of the bank.
6. The learned counsel appearing for the appellant has drawn the attention of the court through the order sheet of the banking court dated 24.02.2017 which reads as under:- "Called. Counsel for plaintiff Mr. Kaleem ullah Quresh Advocate is present. Representative of plaintiff Bank Mr. Muhammad Kashif is present. Defendants are not present. Many opportunities were given to the defendants but neither they appeared before the court nor filed any application for leave to defend the suit despite service through publication in two newspapers. Therefore, the suit of plaintiff is decreed ex-parte against the defendants. Decree sheet be drawn accordingly . Suit is suo motu converted in to execution. To come up on 27.03.2017 for appearance of JDs".
7. Perusal of the aforesaid order sheet reveals that the service of the summons was held good upon the appellant only through publication in two daily newspapers. However , admittedly summons was not served upon the appellant through any one of the other modes, i.e. through personal service by Bailif f, registered post/courier service or by way of passing on the given address. The provisions with regard to the service upon the defendant as contemplated by sections 9(5) and 10(2) of the Ordinance are not to be read disjunctively from the rule of natural justice "audi alterm partem " which is to be read into every statute regardless of whether or not the same is contemplated in the statute. The courts are required to interpret every provision of a statue in such a manner that it should suppress, mischief and advance remedy and not the other way around.
8. Having gone anxious consideration to the facts and circumstances of the case we are of the considered view that the findings of the learned Judge Banking Court are erroneous and against the spirit of section 9 and proviso to section 10(2) of the Ordinance. The learned banking court without any proof of service upon the defendant passed ex parte judgment against the appellant/defendant, as such, the learned Judge Banking Court acted in haste while dismissing the suit of the appellant/defendant.
9. Moreover , after insertion of Article 10-A into the Constitution of the Islamic Republic of Pakistan by 18th Amendment to the constitution and which is to be read into every law of the land, every individual of the state is entitled to a fair trial and due process. Under Article 4 of the Constitution, every individual of the state is entitled to be dealt with in accordance with law as well.
10. We have come across a similar situation, as prevailing in the instant case, when the Banking Court without making an effort to get the defendant, served through ordinary modes of service as provided even in the Banking law, in haste, or at the instance of the plaintif f directly resort to substitute mode of service through publication and also hold such service as valid and good service upon the defendant. No such notice was available in the paper book which was prepared from the record to show that the same was served upon the defendant/appellant. As such, the judgment and decree passed by the learned trial court are not sustainable under the law .
11. Even otherwise, no statement of account was filed by the respondent/bank with its case only break-up has been given in the suit. The learned trial court also did not consider this aspect of the matter .
12. On the other hand, the learned counsel for the petitioner (appellant) submitted receipt according to which the appellant/defendant deposited an amount of Rs.6,00,000/- in favour of the bank which was not denied by the representative of the hank and the said amount has not been adjusted by the bank and has also not shown the said amount in the breakup in para-9 of the suit. On the other hand, the mark-up and the principal amount was shown as a NIL.
13. After perusal of the break-up account in the para-9 of the suit it reveals that the amount availed was Rs.14,00,000/- and the bank charged mark-up Rs.6,14,334/- which is beyond the agreement of the loan availed by the appellant/defendant. It is settled principle that in terms of section 9(2) of the Ordinance the bank is required to file such document in support of its claim which include but not limited to the statement of account duly certified under Banker's books Evidence Act, 1891 and also by all other documents relating to the grant of finances. The case of the defendant/appellant revolves around the statement of account which could only be the basis for the claim as made by the plaintif f in the plaint and in the absence of such statement of account this claim could hardly be construed as an amount outstanding. Statement of account is a crucial document which goes to the root of the case. It is, however , significant to see that though in the body of the plaint, it is claimed to have been mentioned but not available on record. On the contrary , the representative appearing for the bank has not been able to review the contention as raised by the learned counsel for the appellant/defendant.
14. The learned trial court while passing the ex parte judgment was bound to go to the pleading of the plaintif f, but the learned trial court did not do so and without any statement of account with the plaint decreed the suit of the plaintif f/respondent.
15. Under the circumstances, the appella nt has provided that he was not properly served as neither notice was properly issued for the service upon him nor he was ever served with the notice of the suit, as such, ex parte judgment issued and decree passed by the banking court against the appellant stand set aside, and the case is remanded to the learned trial court with the direction after obtaining leave application from the ' appellant/defendant. The matter be decided according to law .
The parties are directed to appear before the trial court on 23.12.2020.