' This order will dispose off C.M.A. No. 4093 of 1983 filed on behalf of the defendants on 29-11-1983 under Order IX, rule 9 read with section 151 and Order XXXVII, rule 4, C.P.C.
' This suit was filed on 21-2-1981 by the Muslim Commercial Bank Limited against the four defendants for the recovery of Rs.76,00,734.70 with interest. The plaintiff bank had granted overdraft/loan to defendant No. 1 company from time to time which was utilized by defendant No.
1. As security for the repayment of the loan/overdraft, defendant No. 1 had mortgaged its properties through three registered mortgage deeds. Defendants Nos.2, 3 and 4 executed guarantees as further and additional security for the repayment of the loan/overdraft taken by defendant No.
1. Initially the suit had been instituted in Special Court (Banking) for Sind at Karachi. Advocates appeared for the defendants before the Special Court. An application (later on numbered as C.M.A.
No. 2163/83) was filed before the Special Court in March 1981 on behalf of defendants 1, 3 and 4 (not on behalf of defendant No. 2) under Order XXXVII, rule 3, C.P.C. for leave to defend the suit. An Advocate had appeared before the Special Court on behalf of defendant No. 2 on several dates of hearing but no application for leave to defend the suit was filed by or on behalf of defendant No.
2. Before the application for leave to defend filed by defendants Nos. 1, 3 and 4 could be decided by the Special Court, the suit was transferred to this Court. By order, dated 30-10-1983 of this Court, the application filed by defendants 1, 3 and 4 for leave to defend, numbered as C.M.A. 2163/83, was dismissed for non-prosecution and the suit was ordered to be filed for final disposal on 7-11-1983.
By judgment, dated 7-11-1983, a preliminary decree was passed against defendant No. 1, the principal debtor and mortgagor of the properties. The present application, C.M.A. 4093/83, has been filed on behalf of all the defendants for setting aside the order, dated 30-10-1983 and preliminary decree, dated 7-11-1983 and praying that this Court "hear the application for leave to defend" i.e. C.M.A. 2163/83 filed on behalf of defendants Nos. 1, 3 and 4. I have heard at length the arguments of Mr. Muhammad Sharif, Advocate for the defendants and Mr. G.H. Malik, who appeared for the plaintiff Bank.
2. One Najmuzzaman claiming to be attorney of defendant No.2, filed his affidavit in support of this application. He has stated in his affidavit that after transfer of this case to this Court, on 28-8-1983 it was ordered that direct notices be issued to the defendants and by order, dated 2-10-1983 it was ordered that direct notice be issued to defendant No.
2. According to the attorney of defendant No. 2, such direct notices were not served upon the defendants and that defendant No. 2 was in New York. According to the defendants, this Court had treated the defendants as unrepresented. In para. 7 of his affidavit, attorney of defendant No. 2 has stated that "neither defendants have been negligent nor the absence was intentional on the part of the defendants."
3. I am not the least impressed by the affidavit of the attorney of defendant No.
2. Nowhere it is stated in the affidavit of attorney of defendant No. 2 that the defendants were unaware of the dates of hearing before this Court i.e. 28-10-1983 and 7-11-1983. Then the defendants themselves have not filed any affidavits in support of the application that they were unaware of the dates of hearing. The affidavit has been filed by the attorney of defendant No. 2, who had not even filed any application for leave to defend the suit. The assertion that this Court had treated the defendants as unrepresented as it had ordered issuance of notice to the defendants, cannot be accepted in the facts of this case. By my order, dated 12-3-1985, I had directed Mr. Maqbool Ahmad Khan, who had been appearing for defendants Nos. 1, 3 and 4 to file an affidavit. He has filed his affidavit, dated 19-3-1985. According to his affidavit, he was aware that this suit was fixed on 30-10-1983 and this he came to know when he reached the Court. He has also stated in his affidavit that the party took away the file saying that it will engage some other Advocate.
4. From the record of this suit the irresistible conclusion that is reached is that all the defendants were aware of the proceedings in this suit and also the dates of hearings of 28-10-1983 and 7-11- 1983. As observed earlier, affidavit in support of the present application does not even assert that the defendants were unaware of the dates of hearing. They have also been represented by Advocates at the relevant time. Then no affidavits have been filed by any of the defendants, as noticed earlier. In my view, no case is made out by the defendants for granting this application.
' C.M.A. No. 4093/83 is accordingly dismissed.