' MAULVI ANWARUL HAQ, J.---The respondent-Bank filed a suit against the appellants for recovery of money. Notices were issued in the manner prescribed. An application was filed seeking leave to defend the suit. A reply was filed. The case was adjourned for various reasons for arguments on the said application, from time to time. On 15-10-2001 the respondent-Bank filed an application under Order XIII, Rule 2, C.P.C. Seeking permission to produce some additional documents. The case - was adjourned to 30-10-2001 for arguments on the said application. On the said date the appellants were absent. The learned Judge, Banking Court, proceeded to dismiss the application for leave to defend and to decree the suit on the sole ground that the appellants were absent. On 19-2-2002 an application was filed purportedly under section 12(2), C.P.C. For setting aside of the said judgment and decree dated 30-10-2001. It was, inter alia, specifically stated therein that on 30-10-2001 only the application under Order XIII, Rule 2, C.P.C. Was listed for hearing whereas the application for leave to defend was dismissed for the absence of the appellants and the suit was decreed. A written reply was filed. Vide order dated 8-7-2002 the application was dismissed.
2. Learned counsel for the appellants contends 'that since the suit or the said application for leave to defend were not fixed for hearing on 30-10-2001, the learned trial Court has acted without lawful authority in dismissing the application and decreeing the suit for the absence of the appellants.
Learned counsel for the respondent-Bank, on the other hand, contends that although the application was dismissed being incompetent yet the merits of the case discussed and the learned trial Court recorded findings that the appellants had failed to make out a plausible defence in the said PLA.
3. We have gone through the copies of the relevant records. It is but apparent on the face of the record, and not otherwise denied that on 30-10-2001 only the application of the respondent-Bank seeking permission to produce additional documents was to be taken up for hearing. Neither the suit nor the application for leave to defend was called for hearing on 30-10-2001. This being so, the order and judgment dated 30-10-2001 dismissing the said application on the ground that the appellants were absent and further decreeing the suit itself are wholly without jurisdiction. We may refer here to the following observations of the Honourable Supreme Court of Pakistan in the case of Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCM R 1949 appearing at page 1951 of the report:-- "It seems difficult to support the order dated 27-3-1986 of the trial Court and the orders of the Additional District Judge and the High Court. A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application for temporary injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for temporary injunction. It could not proceed beyond that and dismiss the suit as well. Quite clearly its order in this regard was without jurisdiction and void."
4. We do find that the learned trial Court after holding that the application is not competent under section 12(2), C.P.C., proceeded to record findings qua the contents of the said application for leave to defend the suit. However, the impugned order dated 8-7-2002 itself speaks that the matter has been approached in a manner as if only a formality is being completed. This is not the spirit of the law. Mere mentioning of a wrong provision of law would not make any lis incompetent. This was a matter to be dealt with under section 151, C.P.C. And we find that incidentally this latter provision of law was mentioned in the title of the said application. The learned trial Court had acted without lawful authority while passing the said decree dated 30-10-2001 and it was to be set aside as such.
Be that as it may, we have been told by learned counsel for both the parties that the matter is under active consideration in terms of the relevant State Bank's circular. This F.A.O. Accordingly is allowed. The impugned order as well as judgment and decree dated 30-10-2001 passed by the learned trial Court are set aside. The result would be that the said application under Order XIII, Rule 2, C.P.C. Filed by the respondent-Bank (which was never decided although it was specifically fixed for hearing on 30-10-2001 and the only proceeding to be taken up on the said date) as well as the said application for leave to defend the suit filed by the appellants shall be deemed to be pending alongwith the suit of the respondent-Bank before the learned trial Court. The parties have been directed to put in appearance before the learned Judge, Banking Court No, IV of Lahore, on 30-7- 2003, whereafter the learned Judge shall proceed further accordingly. No orders as to costs.