' MAULVI ANWARUL HAQ, J.---On 9-10-1978 the appellant filed a suit against respondents Nos. 1 to 5 and Rice Milling Corporation of Pakistan. Later the plaint was amended and respondent No,6 was substituted for the said Rice Milling Corporation of Pakistan and amended plaint was filed on 13-1- 1986. In the plaint it was stated that respondent No,1 through partners respondents Nos. 2 to 5 approached the appellant for loan facility of cash credit against the pledged stocks of Rice, Paddy and Tota: that the facility of Rs, 3,50,000 was provided subject to payment of interest @ Rs, 13% per annum with quarterly rests. The documents mentioned in para.6 of the plaint were executed: that the facility was availed. It was then stated that the said pledged stocks were lying in the good owns within the premises of Mills which were taken over by respondent No,6 after nationalization of Rice Mills but later the respondent No,6 released the said stocks to respondents Nos. 1 to 5 despite the knowledge that the stocks were pledged with the appellant: that their stocks were disposed of by respondents Nos. 1 to 5 which constitutes misappropriation. With these averments a decree in the sum of Rs,3,41,800.05 with future interest was prayed for against respondents jointly and severally.
In their written statement, respondents Nos. 1 to 5 stated that the stocks worth Rs, 3,84,750 were pledged with the appellant whereas a sum of Rs, 3.11,984.67 was due on 17-7-1976. However, some amount was paid without getting the goods released and as such on 15-10-1976 a sum of Rs,2,70,222 was due. It was then stated that as pledged goods were not released by the Bank, nothing is due rather respondents Nos. 1 to 5 have claim against the appellant. The respondent No,6 in its written statement expressed ignorance in reply to most of the contents of the plaint. Its case was that the appellant has no claim against it as the ownership and management of respondent No, 1 was never acquired by the Federal Government. Bar of section 3 read section 9 of Rice Milling (Control and Development) (Repeal) Ordinance, 1977 was also pleaded.
2. In course of time suit stood transferred to learned Special Judge Banking, Lahore, who proceeded to dismiss the suit vide judgment dated 3-2-1991.
3. Learned counsel for the appellant contends that the learned Judge Banking could not have dismissed the suit without considering evidence on record. Learned counsel for the respondents on the other hand have tried to support the impugned judgment of the learned trial Court.
4. We have gone through the trial Court records. We have already referred to the pleadings of the parties above.
' Now the learned trial Court proceeded to frame the following issues:- "Whether the plaintiff-Bank has cause of action against the defendants? OPP."
' The evidence of the parties was recorded. Now the learned trial Court has proceeded to record a finding of fact that Rice Milling Corporation has taken over the pledged goods and disposed them of. A further finding has been recorded that the original contract between the Bank and respondents Nos.I to 5 was novated when the stocks were handed over to the said Corporation by the Bank. It was then held that Rice Milling Corporation cannot be called borrower within the meaning of law. It was then concluded that the appellant-Bank has no cause of action and suit has been dismissed.
5. To our mind the very fact that the trial Court required recording of evidence be speak for the fact that the plaint could not have been rejected. The finding recorded by the learned trial Court of course required evidence and according to the impugned judgment also the recorded evidence was led by the parties. It was the duty of the learned trial Court to have examined the evidence and then to have recorded the said finding of facts. Needless to state that for the purpose of ascertaining cause of action, the only document which is to be seen is the plaint. We have already reproduced the plaint in some particulars above as also pleas taken by two sets of defendants.
These were primarily pleas of facts and unless and until the questions arising from the said pleas are determined with reference to evidence on record, plaint could not have been thrown away summarily as done by the learned trial Court. The impugned judgment is thus no judgment in the eye of land. This R.F.A. Is accordingly allowed and the impugned judgment dated 3-2-1991 is set aside. The result would be that the suit filed by the appellant against the respondents shall be deemed to be pending before learned Special Judge Banking, Gujranwala holding Camp at Sialkot.
Records shall be immediately remitted back to the learned trial Court. Parties shall be summoned.
Learned trial Court shall frame the issues arising out of the pleadings of the parties and after giving chance to the parties to lead such other evidence as they wish to lead apart from he evidence already on record, proceed to decide all the issues of law and facts arise in the suit. No order as to costs.