1. ' ZAFFAR HUSSAIN MIRZA, J.---This is a direct appeal from the judgment of a Division Bench of the Balochistan High Court, dated 10th July, 1989 setting aside the ex parte decree passed by the Additional District Judge, Quetta in the sum of Rs,34,24,980 in a suit filed by him against the respondent.
2. ' The respondent in this appeal is the National Bank of Pakistan which has a branch at MA. Jinnah Road, Quetta. Appellant Hashim Khan was a constituent of the Bank and had a current account with the respondent-Bank's said branch at Quetta bearing account number C/A 985.
3. ' On 24th November, 1985, the appellant filed a suit for recovery of Rs,34,24,980 on the allegation that the respondent-Bank had refused to give credit for deposits made from time to time by the appellant in his said account through 35 pay-in-slips. The respondent-Bank resisted the suit and filed a written statement repudiating the claim of the appellant. It denied that any such amount was deposited and that the said pay-in-slips were issued in the normal course according to the banking practice. The respondent-Bank also pointed out that it had earlier filed a suit for recovery of Rs,23,58,080 against. The appellant which was pending before the learned District Judge.
4. ' On the pleadings of the parties the trial Court framed a number of issues. However, when the suit was called on for recording evidence of the appellant (plaintiff), on 19th October, 1987, he did not produce his evidence and instead made an application under Order XI, Rule 14, C.P.C. For production of documents by the respondent-Bank consisting of the original cheques issued by him. In reply to this application the respondent-Bank stated that it cannot forthwith produce the documents as the same were lying at the Karachi Head Office of the Bank. On 29th March, 1988 a fresh application was moved by the appellant under section 151, C.P.C. Stating that he relied on the documents regarding which he had made an application for production earlier and unless those documents are produced it will not be possible for him to produce any other evidence. Notice was ordered on this application. The case was next taken up on 5th April, 1988 but the hearing was adjourned at the request of the counsel for the respondent-Bank in order to file a reply to the application moved by the appellant under section 151, C.P.C. On 11th May, 1988 when the case was called, it was adjourned as the reply was still not submitted by the respondent-Bank and the case was adjourned for the same purpose after imposing costs. The matter was again called up in Court on 20th June, 1988 when Mr. Muhammad Ismail, Advocate appeared for the counsel of the respondent-Bank whereas no officer of the respondent-Bank appeared, with the result that the Court ordered the suit to proceed ex parte. An application for setting aside the ex parte order was then submitted on 19th September, 1988 and on contest the same was dismissed on the ground that Mr. Ejaz Yousuf, Advocate, who had signed the same was not authorised by the respondent- Bank by a proper power. In the meantime, evidence through affidavits was submitted as ex parte proof in support of the claim in the suit. On 5th October, 1988, a fresh application for setting aside the ex parte order dated 20th June, 1988 was moved through its attorney by the respondent-Bank and also an application for review under Order XLVII, Rule 1, C.P.C. Was submitted. These applications were dismissed by the Court on 8th October,' 1988 and on the next day an ex parte decree was passed as stated earlier.
5. ' An appeal filed be the respondent-Bank having been allowed with the result already stated, this direct appeal has been filed by the appellant in this Court.
6. ' We have heard the learned counsel for the appellant who has mainly urged that the learned Judges of the Division Bench were not justified in holding that the ex parte decree was liable to be set aside as the suit was not called for hearing on 20th June, 1988 but that date was fixed for the hearing of the application with the result that the order to proceed with the suit ex parte was not justified.
7. We are not impressed by this contention. The learned Judges of the Division Bench in an exhaustive judgment had considered the question whether the trial Court was justified in proceeding ex parte against the respondent-Bank in the light of the facts and circumstances of the case. We may here point out that before the appellant made application for production of documents by the respondent-Bank on 19th October, 1987, the case was adjourned three times because the appellant failed to produce his evidence. The date of hearing fixed by the Court on 20th June, 1988, as observed in the judgment was fixed for further proceedings. By reference to the order passed by the Court on the previous date, namely, 11th May, 1988, the learned Judges have found that the aforesaid date was fixed for the reply of the application moved by the appellant under section 151, C.P.C. Therefore, the learned Judges were right in holding that the said date was not fixed for hearing of the suit itself but only in order to dispose of an interlocutory application, in which the stand was taken by the appellant himself that he cannot produce evidence unless his said application was allowed. Therefore, it was rightly held that ex parte order as regards the suit itself could not be passed but at the most the application under section 151, C.P.C. Could have been allowed ex parte on that date. It is well-settled that a suit cannot be dismissed or proceeded with ex pane if the date was not for the investigation of any matter germane to the suit or in other words for the purpose of investigation of the controversy in the suit. A date fixed for disposal of interlocutory matters has been held to be not a date fixed for hearing of the suit.
8. ' It is a fact, that no evidence was summoned by the appellant for this date and he had not yet opened his side of the evidence. We also agree with the learned Judges of the Division Bench that the trial Court took a very technical view of the matter by refusing to consider the application for setting aside the ex parte order merely on the fact that the Advocate had not filed power, although he had appeared on behalf of the respondent on two prior hearings as reflected in the order sheet, without any objection from the appellant side. Nevertheless, Mr. Ejaz Yousuf had asserted before the learned Judges that he had in fact filed a power on behalf of the respondent-Bank which may have been misplaced in the record. The other aspect of the case is that the learned Judges were also right in observing that there is no period of limitation prescribed for setting aside an ex parte order (although there is a period of limitation prescribed for setting aside an ex parte decree).
9. Therefore, the trial Court was wrong in dismissing the second application for setting aside ex parte order on the ground that it has been submitted at "the belated stage".
10. ' In view of the aforesaid circumstances and as no other ground was urged, we feel that the learned Judges of the Division Bench were acting in accordance with law in setting aside the ex parte decree, in the circumstances' of this case, when the appellant himself was in no position to produce and in fact had despite several opportunities, failed to produce evidence in support of his claim. There is no ground for interference made out in this appeal and accordingly the same is dismissed with no order as to costs.