' MIAN HAMID FAROOQ, J.---The appellants/ judgment-debtors, through the filing of the present appeal, under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, has assailed the judgment and decree dated 2-4-2002, whereby the learned Judge Banking Court passed a decree for the recovery of Rs.47,75,229 against the appellants.
2. Necessary facts leading to the filing of the present appeal are that on 12-8-1998, respondent- Bank instituted a suit for the recovery of Rs.47,75,229, against the appellants and respondent No,2, before the then Banking Court under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997. Pursuant to the issuance of summons, as required under the law, the appellants and respondent No,2 filed a joint application, under section 10 of Act XV of 1997, seeking leave to defend the suit, which was supported by the affidavit of respondent No,2, who was arrayed as defendant No,4. During the pendency of the aforenoted suit and application for leave to defend, Act XV of 1997 was repealed by Financial Institutions (Recovery of Finances) Ordinance, XLVI of 2001, whereunder defendants were allowed a period of 21 days from the coming into force of Ordinance of 2001 or from the date of first hearing, whichever is later, for filing an amended application for leave to defend the suit in accordance with the provisions of Ordinance, 2001. Pursuant to the above, the learned Banking Court, on 19-9-2001, adjourned the suit for filing the amended application for leave to defend and the same was, in fact, filed on 10-10- 2001, supported by separate affidavits of appellants. The learned Banking Court, after hearing the parties on the amended leave application, observed on 8-3-2002 that since only one affidavit has been filed alongwith the original application for leave to defend the suit, therefore, the amended leave application will only be considered on behalf of the said defendant and it shall be considered that no leave application, on behalf of the remaining defendants, was filed. Ultimately, the learned Banking Court, after coming to the conclusion that no affidavit has been filed on behalf of the appellants with the original leave application, proceeded to decree the suit for the recovery of Rs.47,75,229 with costs and cost of funds against the appellant vide judgment and decree dated 2- 4-2002, hence the present appeal.
3. The learned counsel for the appellants has contended that as all the appellants have common defence, thus they filed a joint application under the provisions of Act XV of 1997, which was supported by a single affidavit and had, substantially, complied with the requirement of provisions of Act XV of 1997. He has further submitted that it is not the requirement either under the provisions of Act XV of 1997 or Ordinance XLVI of 2001 to file separate affidavits, however, the appellants had filed the separate affidavits of all the appellants, while filing the amended application for leave to defend the suit. In this perspective, the precise submission of the learned counsel is that the impugned judgment and decree is not sustainable under the law and deserve to be set aside.
Conversely, the learned counsel for the respondent-Bank, while supporting the impugned judgment and decree, has vehemently contended that as the basic application for leave to defend the suit, filed under the provisions of Act XV of 1997, was legally defective, therefore, the subsequent amended applications, even if supported by the affidavits of all the appellant, could not be considered and the learned Banking Court has rightly dismissed the application and decreed the suit.
4. Upon the examination of the provisions of section 10(12) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, we find that the said provisions of law provides that where an application for leave to defend has been filed, before coming into force of Ordinance, 2001, the defendant shall be allowed a period of 21 days for filing an amended application for leave to defend the suit. It has nowhere been provided in Ordinance XLVI of 2001 that only those defendants would be allowed to file the amended application for leave to defend the suit, who had already filed an application for leave to defend the suit supported by the affidavits of all the defendants separately. The only prerequisites, to our mind, for filing of application under section 0(12) of the Ordinance, 2001, are that the defendants must have filed an application for leave to defend before coming into force of Ordinance, 2001, and the same is pending at the time of enforcement of Ordinance, 2001. If these two prerequisites are attracted, we are of the view that such a defendant is entitled to file an amended application, as per provisions of section 10(12) of the Ordinance. In this back drop, we have examined the record and find that the appellant did file the application for leave to defend the suit before coming into force of Ordinance XLVI of 2001 and the same was pending before the Banking Court at the time of enforcement of the aforenoted Ordinance, thus they are competent in law to file the amended application for leave to defend the suit.
Subsequently, the appellants filed an amended application, under section 10(12) of the Ordinance, 2001, on 10-10-2001, which was not only signed and verified by all the appellants, but also supported by separate affidavits of all the appellants. We do not find any legal infirmity in filing the latest amended application, justifying the passing of either of order dated 8-3-2002 or decree for such a colossal amount, only after observing that "As no affidavit has been filed on behalf of the said defendants with leave application, suit for recovery of Rs.47,75,229 is decreed."
5. Now coming to the contention raised by the learned counsel for the respondent-Bank, we are of the view that the same is misconceived and misdirected. It has nowhere been provided in Act XV of 1997 that the leave application must be supported by separate affidavits of all the defendants. It has simply been provided in section 10 of Act XL of 1997 that "subject to section 11, the Banking Court shall, upon an application made by the defendant within 21 days, give leave to defend the suit, if a serious and bona fide dispute is raised thereby." There is no provision of law either in Act XL of 1997 or Ordinance, 2001, which provides that application for leave to defend the suit must be accompanied by separate affidavits of each defendant. In the instant case, the original application, which was supported by a single affidavit, was amended/replaced by the latest amended application, which was filed on account of introduction of section 10(12) of Ordinance, 2001 and by operation of law. We are of the view that in the presence of the latest amended application, the original application has lost its efficacy and the learned Banking Court was not required to attach any importance to the erstwhile application, which in our view, was non-existent in view of the filing of the latest amended application. Be that as it may, even if there was any defect in filing the original application for leave to defend the suit, the same stood rectified by filing the amended application under section 10(12) of the Ordinance, 2001 inasmuch as the same was entertained by the learned Banking Court without raising any objection.
6. As regards reliance of the learned trial Court upon judgment reported as Messrs U.B.L. v. Messrs Sindh Tech. Industries Ltd. 1998 CLC 1152 , suffice it to say that the said judgment was rendered with reference to rule 74 of Sindh Chief Court rules, thus the dictum laid down by the Sindh High Court is not attracted in the facts and circumstances of the present case.
7. Another aspect of the case, which has persuaded us to set aside the impugned judgment, is that upon the examination of the impugned judgment, we find that the same is sketchy, slipshod and devoid of reasons. The said judgment is not at all a speaking judgment and cannot be called a "judicial order" within the parameters set up by law. Perusal of the impugned judgment amply manifests non-application of judicial mind. Even it has been enjoined upon the executive authority, as per section 24(A) of General Clauses Act, 1897 (inserted by General Clauses Amendment Act, 1997, Act No,XI of 1997) to give reasons for making the order. The Honourable Supreme Court of Pakistan has time and again di sapproved the passing of such perfunctory orders. It is settled law that "judicial order" must be a peaking order manifesting by itself that the Court has applied its judicial mind to the issues and points of controversy involved in the causes. In any way the impugned judgment, which is not a speaking judgment and devoid of reasons, is not sustainable in law being in contravention of law declared by the Supreme Court of Pakistan in various cases, like Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others PLD 1959 SC (Pak) 272; Gouranga Mohan Sikdar v. The Controller Import and Export and 2 others PLD 1970 SC 158; Mo1Iah Ejahar Ali v.
Government of East Pakistan and others PLD 1970 SC 173 and Muhammad Ibrahim Khan v.
Secretary, Ministry of Labour and others 1984 SCM R 1014,
8. Upshot of the above discussion is that the present appeal stands accepted and the impugned judgment and decree dated 2-4-2002 is set aside with no order as costs. The result would be that the suit as well as the amended application for leave to defend, filed by the appellants shall deem to be pending before the learned Judge Banking Court, who shall decide the same, afresh, after hearing the parties and of course in accordance with law within a period of one month from the receipt of this order.