SAYED NAJAM-UL-HASSAN KAZMI, J. - This appeal arises from judgment, dated 20.3.1999 of the learned Judge, Banking Court No. 1, by which application under Order XXXIV, Rule 5 of CPC was dismissed.
2. Appellant filed a suit for recovery of Rs. 17,85,244/- in which preliminary decree was passed on 1.12.1993, whereby the respondents were required to pay or deposit the amount in question, within six months. An application under Order XXXIV, Rule 5 of CPC was filed for the grant of final decree, on the allegations, that the respondents had failed to make payment of the amount subject- matter of preliminary decree. The application was resisted by raising plea, that some settlement had reached with the bank in terms whereof, certain payment was allegedly made and that a discharge certificate was allegedly issued by the Manager of the Bank. The Bank did not accept the plea of payment or issuance of any certificate by an authorised officer. Learned Judge, Banking Court, after recording statement of Malik Iftikhar Ahmad, respondent No. 2, proceeded to dismiss the application under Order XXXIV, Rule 5 of CPC.
3. Learned counsel for the parties have been Heard.
4. The facts as emerged from the record are that in a suit for recovery of money through sale of mortgaged property, preliminary decree was passed on 1.12.1993, by which the respondents were directed to make payment of the decretal amount within six months. In the application moved on behalf of bank, a request for the grant of final decree was made. Respondents case was that the entire amount had been paid to the bank and that the Manager of the bank had allegedly issued certificate dated 20.12.1997 and that nothing was outstanding. This position was factually controverted by the bank which maintained that no such payment was ever made, the decretal amount was still outstanding, Malik Manzoor Ahmad, the alleged Manager, who statedly issued certificate was no longer in service and that the document was forged. Amazingly the learned Judge, Banking Court, proceeded to dismiss the application in a novel way inasmuch as no inquiry was held, no opportunity, of cross-examination offered, no proper procedure was followed and the application was dismissed in a mechanical manner and that too on flimsy grounds. It was a case in which the plea of payment, discharge and satisfaction was raised by the respondents and simply because they have raised this plea would not lead to the assumption that the payment had been made or that the certificate had been validly issued. In view of the specific defence taken, by the bank maintaining that no such payment was made and that the certificate was a forged document and also that the Manager had already been sacked, it was necessary for the respondents to prove that the amount was validly deposited in the Bank and that a valid discharge certificate was issued by some official of the Bank who was competent to certify the same. Except for the statement of Malik Iftikhar Ahmad, respondent No. 2, no evidence whatsoever was produced. Interestingly, the statement was not allowed to be made subject-matter of cross- examination. It was nothing but admission in ones own favour which could not be based, dismiss the application under Order XXIV, Rule 5 of CPC. Strange enough, the learned Judge, Banking Court, observed that the bank simply denied the payment and could not prove that the documents were forged and fake. The view taken suffers from perversity of reasoning and legal infirmities. One who alleges payment and execution of a document has to prove the payment and genuineness of the document. Neither, any record of the Bank was requisitioned by the respondents nor the alleged Manager who was claimed to be signatory of the certificate was produced in evidence. It is a case in which no proper procedure was followed rule of natural justice was completely violated and the payment of amount and issuance of a valid certificate was assumed, without any proper proof. In this view of the matter, the impugned judgment/order of the learned Judge, Banking Court, suffers from material error of law and jurisdictional defect, hence cannot be approved.
5. For the reasons above, this appeal is allowed, the impugned judgment is set aside and the case is sent back to the learned Judge, Banking Court, for decision of the application, under Order XXXIV, Rule 5 of CPC, afresh in accordance with law and on merit, after allowing opportunity of evidence to the parties.