MUZAMIL AKHT AR SHABIR, J. This appeal is filed under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance") , against judgment & decree dated 24.05.2016 passed by Judge Banking Court No. III, Lahore whereby recovery suit filed by the appellant against the respondents has been dismissed as a consequence of closure of appellant' s right to lead evidence under Order XVII rule 3 C.P.C. vide order dated 21.05.2016.
2. It is contended by learned counsel for the appellant that sufficient opportunities were not provided to lead evidence before closing right of evidence of the appellant whereas on most of the occasions when the matter was listed for recording of evidence either learned Presiding Officer of the Court was not available or lawyers were observing strike, therefore, all the adjournments cannot be attributed to the appe llant and learned Banking Court wrongly observed that five opportunities were provided to the appellant to lead evidence which observation besides being incorrect is not supported by the record. Moreover , said opportunities were provided within short span of less than one month i.e. between 05.05.2016 to 21.05.2016 on which date evidence of the appellant was closed, consequently according to the appellant the impugned decisions are not sustaina ble as reasonable opportunities have not been provided to it for the purpose of recording evidence.
3. On the other hand, despite service through publication in daily 'Nawa-i-W aqt' and daily 'News' both dated 21.08.2019, the respondents did not appe ar in the Court on 23.09.2019 i.e. date fixed for their appearance, hence, they were proceeded against ex-parte on the said date.
4. Perusal of the record shows that appellant bank filed suit for recovery of Rs. 8,147,171.41 with markup and other charges etc. against respondents on 28.06.2003 which was contested by the respondents and after grant of leave to defend vide order dated 24.11.2005 matter kept on lingering, on one pretext or the other as writ petition No. 244/2006 was filed against order dated 24.11.2005 which was decided on 21.09 .2006 and various applications were filed by the parties, where-after against another order passed by the Banking Court dated 02.12.2013 an F.A.O. bearing number 610/2013 was also filed before this Court, which was decided on 10.12.2014 and thereafter issues were finally framed on 26.02.2015 and matter was fixed for recording of evidence of parties, however , while the appellant was to lead its evidence, it transpired that appellant had not filed list of its witnesses where-after on 23.04.2016 appellant filed an application under Section 151 C.P.C. with the prayer that appellant bank may be permitted to file list of witnesses which application was partially dismissed on 03.05.2016 with the observation that prayer to seek permission to submit list of witnesses was meritless, however , it was observed that in the list of witnesses attached with the application, the appellant bank had mentioned name of Mansoor Pervaiz Malik S.V.P.
(retired) who had actually filed the titled recovery suit being duly authorized attorney of the bank and he was allowed to appear as witness and record his evidence on behalf of plaintif f bank and for the said purpose matter was adjourned to 05.05.2016 for recording of appellant' s evidence. On 05.05.2016 adjournment was sought by the appellant and matter was adjourned to 07.05.2016 when the learned Presiding Officer was on leave, so matter was adjourned to 09.05.2016, on which date lawyers were observing strike and matter was adjourned to 11.05.2016 when again request was made by the appellant for adjournment to produce evidence and matter was fixed for 13.05.2016 when the learned Presiding Officer was again on leave. Consequ ently, matter was adjourned to 17.05.2016 when the lawyers were again on strike and matter was relisted for 19.05.2016 when evidence of the plaintif f bank was not available and further opportunity subject to cost of Rs. 1,000/- was provided to the appellant for 21.05.2016 when due to non-appearance and non-submission of affidavit by Mansoor Perviaz Malik S.V.P.
(retired) as witness, the evidence of the appellant bank was closed under Order XVII Rule 3 C.P.C. and matter was adjourned to 24.05.2016 for recording of evidence of the respondents/defendant s. The relevant portion of order dated 21.05.2016 is reproduced below: "Vide order dated 03.05.2016 of this court, the plaintiff bank was directed to subm it the affidavit of its witness Mr. Mansoor Pervaiz Malik, SVP (Retired) being the actual plaintiff/duly authorized attorney of the plaintiff bank for evidence of the plaintiff. Thereafter , despite of availing five opportunities, the plaintiff bank has not submitted the requisite affidavit of its witness. As in the instant case, direction of the Honourable Lahore High Court, Lahore has also been received to decide the same till 31.05.2016. Today , neither the said witness of the plaintiff bank appeared before this court nor his affidavit has been submitted, however , counsel for the plaintiff bank has only submitted a slip mentioning therein only the address of the above said witness. This attitude of the plaintiff bank shows its lack of interest to pursue the instant case. In view of above, the right of plaintiff bank to produce its evidence is hereby closed under Order 17 Rule 3 CPC."
5. The respondents on 24.05.2016 recorded statement that as appellant bank had not produced its evidence in support of its claim, there was no need for them to record their evidence and after recording the said statement, Judge Banking Court on same date dismissed the suit of the appellant bank upon failure to prove its case.
6. The aforesaid orders are under challenge before this Court and we have noted that within a short span of less than one month, a few opportunities were provided to the appellant bank to produce its witness i.e. Mansoor Pervaiz Malik S.V.P. (retired), who had filed the suit as duly authorized attorney of the bank, however , while providing opportunity to the appellant to produce him as witness the Court had not taken into consideration that due to pendency of the matter for long time, the circumstances had changed as the said witness, after filing of suit, had retired and was beyond bank' s control for the reason that he was no longer working with it, thus, his evidence could not be produced by the appellant bank. We have also noted from the record that all opportunities to lead evidence, last with cost of Rs.1,000/- were allowed within a short span of seventeen days, out of which on some of the said dates lawyers were observing strike and on some dates learned Presiding Officer was on leave. Although, Banking Court has observed that five opportunities were provided to the appellant to produce evidence but from details of adjournments provided above, the said observation as to number of opportunities is also not substantiated from the record, besides, neither all the adjournme nts can be attributed to the appellant nor the conduct of the appellant can be treated as contumacious on the basis of facts of the case, especially , when the matter had been lingering on for many years due to pendency of various applications and afore-mentioned writ petition and appeal before this Court in earlier round of litigation resulting into change of circumstances mentioned above at the time of recording of evidence. In somewhat similar circumstances, when last opportunity to lead eviden ce was provided subject to costs and there-after evidence of defendant was closed on the next date under Order XVII Rule 3 C.P.C. and suit was decreed, the Hon'ble Supreme Court of Pakistan in judgment reported as "Zahoor Ahmed Vs. Mehra through Legal Heirs and others" (1999 SCMR 105) set aside the said decree and remanded the matter for decision afresh while observing that the trial court had acted illegally and/or with material irregularity in not giving sufficient time to the appellant/defendant to produce his evidence in facts and circumstances of the case, the order passed by the trial court in the purported exercise of its powers under Rule 3 Order XVII C.P.C. was not in conformity with the well accepted principles laid down by the Superior Courts.
7. Besides, there is another aspect of the matter that the Banking Court did not provide reasonable opportunity to the bank to produce afore-referred witness in evidence and closed the evidence of the appellant under the impression, as evident from order dated 21.05.2016, that direction has been issued by the High Court to dispose of the case till 31.05.2016. Although, the Banking Court was bound by the direction issued by the Court but that does not mean that the matter was to be decided without giving reasonable/proper opportunity to the parties to lead evidence in their case, reliance in this behalf is placed on judgment of Division Bench of this Court in case titled "Pervaiz Afzal and others Vs. Sheikh Hussain Ali and another" (1994 CLC 951) wherein this Court while hearing appeal set aside the order of closure of evidence under Order XVII Rule 3 C.P.C. and also the decree passed as a consequence thereof by observing as under: "5. The main issue in the suit was as regards execution of agreement of sale. The judgment of the trial Court mainly rests on the opinion of the expert witness produced by the respondents. The expert witness (D.W .3) produced by the appellants was not allowed fair and reasonable opportunity to examine the disputed documents and compare the disputed signatures of the vendor on the agreement of sale with his admitted signatures after getting enlarged photos of the same and to prepare his report. The appellants were also not allowed to examine Syed Mubarak Ali Shah and Muhammad Akbar as witnesses and to summon the Town Planner on the ground of paucity of time. In our view the appellants have been condemned unheard as no sufficient and fair opportunity was given to them to produce the evidence to rebut the evidence of the respondents/plaintiffs. If the time was short, it was not the fault of the appellants as the evidence of the respondents/plaintiffs was concluded on 14-05-1992 and the trial Court should have requested for extension of time bringing to the notice of this Court, its direction to decide the case before the date fixed. It may be mentioned here that the discretion and jurisdiction of the trial Court vested under Order 17 and other provisions of the Civil Procedure Code to grant adjournment to a party if satisfied that there were reasonable grounds to do so were not in any manner curtailed or abrid ged by a direction given by this Court on administrative side to decide the case before the date fixed because it is merely meant to regulate the proceedings of the Court and not to divest it from the judicial power conferred by the Statute. In a given case even if the trial Court was not in a position to decide the suit within the time granted by this Court and the suit was decided after the date fixed by this Court neither the validity of proceedings taken nor the judgment and decree passed after the date fixed would be adversely affected.
6. For the foregoing reasons the impugned judgment and decree is not sustainable. This appeal is accepted.
Judgment and decree dated 30-05-1992 is set aside and the suit remanded to the trial Court for fresh disposal. The appellants shall be given opportunity to examine D.W.3, who shall be allowed to take photos of the documents present on the record, the Town Planner , Syed Mubarak Ali Shah and Muhammad Akbar as witnesses. The attendance of D.W.3, Syed Mubarak Ali and Muhammad Akbar in the Court shall be caused by the appellants at their own responsibility and the T own Planner shall be summoned if requested by the appellants."
8. Moreover , an order issuing direction to a subordinate Court to decide the matter within a particular timeframe is not mandatory and usually directory in nature and such direction should be followed as far as possible, keeping in view the interest of justice. However , the strict adherence to the direction given by Superior Courts to decide the matter in a particular timeframe should not stand in way of the Court to do justice in the matter by decision of the same in undue haste resulting in miscarriage of justice. Reliance is placed on judgment reported as "Shams-ud- Din Vs. Muhammad Sharif" (PLD 1996 Lahore 210), wherein the Court set aside the orders and remanded the matter to the trial court for decision afresh by observing as under: "8. In the instant case the learned Distric t Judge had given a direction to decide the suit before summer vacation.
The learned trial court appears to have decided the suit with undue haste in its anxiety to obey the direction of the learned District Judge. Indeed it is appreciable that the learned trial court felt bound to decide the case within the time limit fixed by his superior Court, because to do so was a part of his duty. It should, however , be noted that special directions for expeditious disposal of cases are issued by the superior Courts for the purpose of expeditious decisions of case in accordance with law. Hearing/trial of cases should be so managed that the parties may not be deprived of their right of reasonable opportunity of hearing. Care should be taken that justice is not sacrificed at the altar of expeditious disposal of the cases. It must be clarified that direction by super ior Courts for disposal of a case within a particular timeframe is not mandatory and usually directory in nature and such direction should be followed as far as possible, keeping in view the interest of justice. Where the Court finds that consistent with the demands of law and justice it is not possible to decide the case within the directed time limit, a request can be made for extension of time. It has to be clearly understood that reasonable opportunity of hearing is the pivotal point of our judicial system. Every other consideration, however , pious it may be, has to yield to fundamental principles of law that fair opportunity of hearing has to be afforded to the effected parties by every Court/T ribunal. In the circumstances of present case the learn ed trial court should have adjourned the case for a few days to afford opportunity to the plaintiff to requisition the required material which was in possession of police. We are sure if that had been done the plaintiff would have produced the witnesses as had been done on two earlier dates of hearing."
9. Besides, law favours that matter should be decided on merits rather on technic alities, reliance in this behalf is placed on judgments reported as "Zohra Bibi and another Vs. Haji Sultan Mehmood and others" (2018 SCMR 762), "Mst. Bundi Begum Vs. Munshi Khan and others" (PLD 2004 SC 154), "Muhammad Anwar Khan and 5 others Vs. Ch. Riaz Ahmad and 5 others" (PLD 2002 SC 491), "Evacuee Trust Property Board through Assistant Director Evacuee Trust Properties, Gujrat Vs. Muhammad Siddique alias Bandoo and others"
(1995 SCMR 1748 ), "Mir Mazar Vs. Azim" (PLD 1993 SC 332), "Master Musa Khan and 3 others Vs. Abdul Haque and another" (1993 SCMR 1304 ), "Manager , Jammu & Kashmir , State Property in Pakistan Vs. Khuda Yar and another" (PLD 1975 SC 678) and "Imtiaz Ahmad Vs. Ghulam Ali and others" (PLD 1963 SC 382).
Moreover , it is settled by now that every procedure that promotes the administration of justice was permissible unless it was expressly prohibited, relianc e is placed upon "H.M. Saya and Co., Karachi Vs. Wazir Ali Industries Ltd. Karachi and another" (PLD 1969 SC 65), "Muhammad Ijaz Ahmad Chaudhary Vs. Mumtaz Ahmad Tarrar and others" (2016 SCMR 1) and "Zahid Zaman Khan and others Vs. Khan Afsar and others" (PLD 2016 SC 409).
10. In the present case, in view of the foregoing this Court has reached conclusion that the Banking Court decided the matter in undue haste in order to comply with the direction of this Court to finalize the matter till 31.05.2016 and sufficient opportunities were not provided to the appellant to produce Mansoor Pervaiz Malik S.V.P. (retired) in evidence despite the fact that his evidence was required for just decision of the matter and would have helped the Court to reach a proper conclusion of the same. Consequently , the impugned order closing the right of appellant to produce evidence does not appear to be based on proper exercise of jurisdiction based on thorough appreciation of record available before the Court and is not sustainable.
11. For what has been discussed above, the impugned order dated 21.05.2016 closing appellant' s right of evidence and judgment & decree dated 24.05.20 16 passed in consequence thereof, whereby appellant' s suit has been dismissed are not sustainable and are set aside with the result that matter is remanded to the learned Banking Court with the direction to provide another opportunity to the appellant bank to produce evidence where-after , the respondents shall also be provided opportunity to produce their evidence and the matter shall be decided afresh on its own merits.
12. For what has been discussed above, this appeal is allowed with no order as to costs.