' Through the filing of this Constitutional petition, the petitioner/defendant No,3 has called in question orders dated 24-3-1998 and 25-4-2000, passed by the learned Judge, Banking Court No,1, Faisalabad, whereby the learned Banking Court passed an ex parte order against the petitioner and the application for setting aside the ex parte order was also dismissed in limine respectively.
2. Brief facts of the case are that the respondent-Bank filed a suit for recovery of Rs,2,82,40,530.90 against the respondents Nos.2 to 4 wherein the petitioner was arrayed as respondent No,3. After the publication of the summons in the newspaper, ex parte order was passed against the petitioner on 24-3-1998. According to the petitioner, he came to know about the said ex parte order on 20-4-2000, whereupon he filed an application for setting aside the ex parte order alongwith another application filed under section 5 of the Limitation Act seeking condonation of delay, but the same was dismissed by the learned Banking Court vide order dated 25-4-2000, hence, the present writ petition.
3. According to the office report, post card was issued to the respondent-Bank, but nobody has entered appearance to represent the said respondents, hence, they are proceeded ex parte.
4. Learned counsel for the petitioner has contended that the impugned order passed by the learned Banking Court is not sustainable in law as the same has been passed on erroneous assumptions. He further submitted that the learned Banking Court while dismissing the application has not adverted to the grounds taken in the application for setting aside the ex parte order, which were supported by an affidavit. He has further added that the delay was sufficiently explained in the application under section 5 of the Limitation Act, which has not been decided by the learned Banking Court and, thus, the same is deemed to be pending.
5. Admittedly, ex parte order was passed on 24-3-1998, for the setting aside of which, the application was filed on behalf of the petitioner on 20-4-2000, who was arrayed as defendant No,3.
The said application was although filed after the lapse of two years, yet an application under section 5 of the Limitation Act was filed by the petitioner seeking condonation of delay.
6. Upon the examination of the impugned order, it appears that the learned Banking Court had not adverted to the grounds raised in the application seeking setting aside of ex parte order. The impugned order has only proceeded on the assumption that the presence of his brother, defendant No,2, is sufficient to believe that the respondent No,3 has also been served. This approach of the learned Banking Court is to say the least is perfunctory and cannot be countenanced under any stretch of imagination. The learned Banking Court was under an obligation to decide the application dealing with the grounds taken in the said application after calling for the reply from the respondent-Bank, who may have taken the plea of limitation. The petitioner has also filed an application under section 5 of the Limitation Act seeking condonation of delay of nearly two years which has not at all been dealt with by the learned Banking Court.
7. I have examined the impugned order and constrained to observe that the same is devoid of reasons, sketchy and cannot be sustained under the law. The impugned order is exceptionable and definitely calls for interference in exercise of the Constitutional jurisdiction of this Court.
8. In view of the above reasons and conclusions, the writ petition is accepted to the extent of setting aside the order dated 25-4-2000, passed by the learned Judge Banking Court, whereby an application filed by the petitioner for setting aside the ex parte order dated 24-3-1998, was dismissed. The result would be that the applications for setting aside the order dated 24-3-1998, and under section 5 of the Limitation Act filed by the petitioner before the learned Banking Court shall deem to be pending before the learned Banking Court No,1, Faisalabad, who shall decide the same after hearing the parties and, of course, in accordance with law within a period of one month after the receipt of the order of this Court and also to intimate the result of the proceedings to this Court through the Deputy Registrar (Judicial) of this Court. The parties are directed to appear before the said Court on 3-11-2001.
9. Office is directed to send the copy of this order to the learned Judge, Banking Court No,1, Faisalabad and Manager, Habib Bank Limited, Circular Road, Faisalabad, immediately.