' MIAN SAQIB NISAR, J.---On his application, the appellant was issued a visa credit card by the respondent-Bank. Subsequently, the respondent-Bank brought a suit against the appellant, claiming that having utilized the credit card to the extent of the suit amount, the same has not been paid to the Bank. The appellant moved an application for leave to appear and defend, in which, it was explained that the said credit card was lost in September, 1997 and due information in this behalf, was given to the respondent-Bank, but the Bank did not stop the utilization of the card and allowed it to be used, when somebody by using the same, had made certain purchases in Singapore, while the appellant was in Pakistan. The learned Court below has dismissed the leave application, basically relying upon the contents of the plaint and also holding that the signatures on the vouchers of the purchases, made in Singapore, are signatures of the appellant.
2. Learned counsel for the appellant states, that the learned Court below, by itself could have not made an accurate analysis and formed opinion about the similarity of the signatures; besides, such comparison/opinion, even if given by an expert, is the weakest kind of evidence, resultantly, this was a case, which involved factual controversy and the appellant had. Disclosed a plausible defence, therefore, the learned Court below should have allowed the application and permitted the appellant to defend the suit.
3. Learned counsel for the respondent, though has opposed the above, but has not been able to show, if the judgment of the learned trial Court, which is primarily based upon the comparison of the signatures by the Court, can be sustained. It is not controverted by the respondent's counsel, that such questions, such as loss of the credit card, the intimation to the Bank in this behalf, the appellant whether went to Singapore where the card was used, are the questions, which require proper enquiry, without whereof, the issues of facts involved, could not be decided.
4. We have heard the learned counsel for the parties and find that the defence disclosed in the application for leave to appear, had raised substantial issues of facts, which could have not been decided without framing of issues and recording of the evidence. Mere making the visual comparison of the signatures of the purchase vouchers, by itself was not a proper course for the Court to have rejected the leave application. Resultantly, by allowing this appeal, the judgment and decree of the Court below is set aside. The case is remanded to the Banking Court No,IV, Lahore, for its re-decision in accordance, with law.
5. It may be pertinent to state here that during the pendency of this appeal, the decree has been satisfied by the appellant by making deposit of the decretal amount with the respondent-Bank, thus, we are not passing any order for the return/restitution of the said amount to the appellant at this stage. However, if ultimately, the suit of the respondent-Bank is dismissed, the. Bank shall be liable to return the said decretal amount to the appellant alongwith the mark-up at the prevalent rate till its repayment.