' CH. IJAZ AHMAD, J.---The appellants filed a suit for mandatory injunction before the Banking Court No,V, Lahore against the respondents. The learned Banking Court dismissed the suit of the appellants vide judgment and decree dated 8-12-2000, hence the present appeal.
2. The learned counsel of the appellants submits that the trial Court erred in law to dismiss the suit of the appellants on technical grounds of res judicata. He further submits that parties are not same in the earlier suit, cause of action is not same, nature and relief of the second suit are also different.
He further submits that earlier suit filed by the respondent/Bank was against Rashid Motors (Pvt.)
Ltd. Admittedly appellant No,1 was a Director of that Rashid Motors (Pvt.) Ltd., whereas appellants Nos.2 and 3 were not Directors of that Rashid Motors (Pvt.) Ltd., therefore, respondent/Bank did not implead them as respondents/defendants in the earlier suit. He further submits that appellants executed partnership deed on 26th October, 1978. He further submits that respondent/Bank did not file any application for leave to defend before the Banking Court and also did not file any application for rejection of the plaint, therefore, the Banking Court erred in law to dismiss the suit of the appellants. He admits that suit filed by the respondent/Bank, before the Banking Court was decreed vide judgment and decree dated 7-4-1999. Appellant No,1 and aforesaid Rashid Motors (Pvt.) Ltd., filed appeal Regular First Appeal No,294 of 1999, which was also dismissed by the Division Bench of this Court vide judgment and decree dated 21-9-2000. He further submits that Muhammad Aslam appellant and others in the said suit filed a petition before the Honourable Supreme Court, which according to him, was also disposed of with certain observations. He further admits that relationship between the appellants inter se i.e. Haji Noor Muhammad appellant No,3 is father whereas appellants Nos.1 and 2 are his sons. The loan was also secured according to him by the said private limited company through Ch. Muhammad Aslam appellant. The following are the Directors of the said private limited company:--
(1) Ch. Muhammad Aslam appellant No,1,
(2) Muhammad Rashid son of appellant No,1, (3) Nasim Akhtar, wife of appellant No, 1.
3. We have considered the contentions of the learned counsel of the appellant and perused the record.
4. It is better and appropriate to reproduce the operative parts of the impugned judgment of the Banking Court and also the operative part of the judgment in the appeal filed by the appellants in the connected case against the respondent/Bank to resolve the controversy between the parties;- - ' Impugned judgment of Banking Court No, V, Lahore. {{URDU TEXT}} Operative Part of judgment of D.B. In Regular First Appeal No,294 of 1999: --- "Messrs Rashid Motors (Pvt.) Limited Company appellant No,1 was customer of Mehran Bank in the year 1992-93 and on their request finance facilities were sanctioned in their favour. In 1995 Mehran Bank merged into National Bank of Pakistan and it took over assets and liabilities of Mehran Bank.
Respondent appended documents two sanction letters placed at pages 43 and 45 of the file of the trial Court dated 6-6-1992 and 17-9-1992 whereby the loan was sanctioned in favour of Messrs Rashid Motors. Pronote, dated 17-10-1992 at page 47, agreement for financing for shot/medium/long term on mark-up basis executed on 17-2-1992 at pages 49 to 52. The other documents of letter of pledge and guarantee dated 17-10-1992 at page 53, facility letter dated 17- 10-1992, promissory note dated 13-12-1993 and other agreement dated 3-12-1993, at page 65, letter of hypothecation dated 13-12-1993, facility letter, stock report and other numerous documents placed on the file of the lower Court clearly establish that the appellants received the loan and finance facilities from the respondent. All the afore-referred documentary evidence cannot be disbelieved on merely oral assertion of the appellants and the certificate of incorporation of the company attached as Annexure C' with this appeal showing its registration during 1994-95."
5. In case the aforesaid findings of the trial Court and the Division Bench of this Court in the said Regular First Appeal No,294 of 1999 are put in juxtaposition then it brings the case of the appellant in the area that principle of res judicata is fully attracted as per principle laid down by the Honourable Supreme Court in Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145 coupled with the fact that appellant No,1 is a Director admittedly of the Rashid Motors (Pvt.) Ltd. Company whereas appellants Nos.2 and 3 are his brother and father, therefore, it appears that the appellants filed this second suit after the decree was passed by the learned Banking Court against appellant No,1 mala fide.
5-A.. In view of what has been discussed above, we do not find any illegality and infirmity in the impugned judgment of the trial Court, therefore, this appeal is dismissed.