1. ' The defendants Nos.2 to 4 and 6 to 8 have applied for leave to defend and for their deletion from the array of defendants on the ground that the present proceedings could not be maintained against them. I have examined the plaint, and the learned counsel for the plaintiffs, on 31-8-1998, was called upon to show if the defendants Nos.2 to 8 could be classified as "borrower" within the meaning of the term contained in section 2(c) of Act XV of 1997. Time was sought by Mr. Muhammad Sadiq to consider the matter with the further submission that applications had already been filed by the plaintiff for deletion of defendants Nos.3 and 8 from the proceedings. The learned counsel for the plaintiff was put on notice that in case the said defendants had unnecessarily been impleaded, the plaintiff could be burdened with compensatory costs. Mr. Muhammad Akmal Waseem who has undertaken to file power on behalf of the, plaintiff, at the very outset, has conceded that the defendants Nos.2 to 8 had not undertaken any personal liability in relation to the loan in question and the present proceedings could not, be maintained against them under Act XV of 1997. Here, a question. Arises for consideration, if the defendants Nos.2 to 8 can be struck off from the proceedings and the request made by them to the above effect can be entertained unless leave was granted to the said defendants under section 10 of Act XV of 1997. Mr. Makhdoom Ali Khan, representing the defendant No,4, has pointed out that under Order I, Rule 10, C.P.C. This Court can strike off a party from the proceedings even on its own motion and at any stage. Mr. Muhammad Akmal Waseem concedes to such legal position. Even otherwise, one of the distinctions between the provisions contained in section 10 of Act XV of 1997 and Order XXXVII, C.P.C.
2. Is that the words "give leave to appear and to defend the suit" used in the latter provision, have been substituted with the words "give leave to defend the suit" incorporated in section 10 of Act XV of 1997. A defendant, therefore, can appear even without leave to defend and the change in law seems to be conscious and deliberate. The defendants appearing in the matter can, evidently, point out inherent defect in the proceedings or non-maintainability thereof. The matter with regard to maintainability of present proceedings against defendants Nos.2 to 8 is, therefore, taken up and in view of the acknowledgement, candidly made by Mr. Muhammad Akmal Waseem, the defendants Nos.2 to 8 are ordered to be struck off from the present proceedings. Let the plaintiff file an amended plaint with copy in advance to the learned counsel for defendant No,1 who is already represented and for such reason fresh summons or notices need not issue. The amended plaint be filed, as above, within one week from today.
3. ' This brings me to the question of compensating the defendants Nos.2 to 8 who had unnecessarily been joined as party to the proceedings. While the defendant No,5 is stated to have expired before the institution of the suit and the proceedings against him were void, the learned counsel for defendants Nos.2, 3 and 6 to 8 do not claim compensatory costs. Mr. Makhdoom Ali Khan, however, claims compensatory costs. Having considered the position, I am of the view that misjoinder of parties in a banking suit would justify award of maximum amount of compensatory costs since upon service of summons, a defendant is required to take various steps for defending the proceedings. Such steps, indeed, can be considered quite harsh in relation to normal civil proceedings. In the present case, however, the defendant No,4, on 31-8-1998 was directed to appear in person on the next date of hearing which was fixed for today. The defendant No,4 has not appeared and an application placed at serial No,12 is moved for condoning his absence for the reasons stated in the affidavit filed in support of the application. Mr. Makhdoom Ali Khan has made an oral motion for recall of order, dated 31-8-1998 and submits that the defendant No,4 has highest regard for the Court and would have complied with the direction but for the unavoidable reasons stated in the application. Mr. Muhammad Akmal Waseem has no objection to the grant of the oral motion made by Mr. Makhdoom Ali Khan who also reciprocates by giving up the claim for compensatory costs. In the circumstances, while expressing serious reservations about the plaintiff's conduct in having initiated proceedings against defendants Nos.2 to 8 unnecessarily, I would refrain from awarding any compensatory costs. The order, dated 31-8-1998 requiring the personal appearance of defendant No,4 is recalled, by consent, as above.
4. ' As a result of order striking off the defendants Nos. 2to 8 from the proceedings, the applications listed at serial Nos.1, 2, 3, 4, 5, 7, 9, 10, 11 and 12 have become infructuous and are dismissed. The application listed at serial No,8, being Civil Miscellaneous Application No,4922 of 1998 as per statement of Mr. Saalim Salam Ansari shall be treated as application for leave on behalf of defendant No,1; alone.
5. ' Mr. Muhammad Akmal Waseem seeks deferment of the application at serial No,8 to a date till after filing of amended plaint. Such request being reasonable is granted. Put up to a date in office.