' MIAN HAMID FAROOQ, J.--The appellants, through the filing of the present appeal, have challenged judgment and decree dated 9-5-2001, whereby the learned Single Judge in exercise of his jurisdiction as a Banking Judge, dismissed appellant's suit for recovery.
2. Precisely stated the facts culminating to the filing of the present appeal, are that the appellants, on 21-4-1999, filed a suit for recovery (C.O. S. No,35 of 1999) thereby claiming a decree for a sum of Rs.10,49,36,083.00, against the respondent, under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. In response thereto the respondent-Bank filed an application (P.L.A. No,67-B of 1999) seeking leave to defend the suit, which was allowed by this Court, vide order dated 7-11-2000. Pursuant thereto the respondent-Bank filed the written statement and on 15-3-2001, issues were framed. The learned Banking Judge ordered that Issue No,1 be treated as preliminary issue. It was held vide order dated 12-4-2001, that the suit is not liable to be dismissed on account of misjoinder of causes of action or of plaintiffs, however, the suit can only proceed in respect of the claim of any one plaintiff. Thereafter the learned Banking Judge granted various adjournments to the appellants for the exercise of option for the purpose of electing one of the three plaintiffs to proceed with the suit. The costs imposed for such purposes was also not paid. The learned Banking Judge, after finding that no further time can be allowed for the said purpose and the costs have also not been paid proceeded to dismiss the suit, vide judgment and decree dated 9-5-2001, hence the present appeal.
3. Learned counsel for the appellants has contended that in view of the contents of order dated 12- 4-2001, the total suit could not have been dismissed and at least suit to the extent of one plaintiff was to be processed. He has further submitted that the impugned judgment suffers from legal errors, hence, the same is not sustainable. Conversely, the learned counsel for the respondent- Bank has supported the impugned judgment and decree.
4. Upon the examination of the record, we find that the. Learned Banking Judge framed as many as seven issues, out of which the following issue was ordered to be treated as preliminary issue, vide order dated 12-4-2001:-- "Whether the suit is liable to be dismissed on account of misjoinder of causes of action and misjoinder of parties? OPD."
The learned Banking Judge, while deciding the said issue, vide order dated 12-4-2001, came to the conclusion that the suit could not be dismissed on account of misjoinder of causes of action or of plaintiffs, however, according to the learned Judge the suit could only proceed in respect of one of the plaintiffs. It would be appropriate to reproduce the concluding portion of the aforenoted order, which reads as follows:-- "In the above circumstances, the suit, as such, is not liable to be dismissed on account of misjoinder of causes of action or of plaintiffs. However, this suit can only proceed in respect of the claim of any one plaintiff. Learned counsel seeks one week's time to obtain instructions to exercise his option to elect one of the plaintiffs to proceed with the suit. He is allowed to do so. Relist on 19- 4-2001."
5. It flows from the above that the learned Banking Judge decided Issue No,1 against the respondent-Bank and after deciding the said issue; he ought to have embarked upon to decide other issues because with the decision of the said issue, in favour of the appellants, the suit was , held to be maintainable and the plea of the respOndent-Bank that it suffers from misjoinder of causes of action and parties did not find favour with the learned Judge.
6. Now coming to the impugned order. It appears that the suit was dismissed on the grounds that the learned counsel for the appellants sought further time for exercise of option to apprise the Court as who, out of the three plaintiffs, would proceed with the suit and on account of non- payment of the costs. We feel that if the learned Judge was not inclined to allow any further time to the appellants for the said purpose, the learned Court should have proceeded with the matter in accordance with law instead of non-suiting the appellants on the said grounds, as to our mind there was no legal justification to dismiss the suit on the said two grounds. Even if the learned Judge was of the view that the suit could not proceed in the present form, in that case at least one of the plaintiffs, at the discretion of the learned Banking Court, should have been allowed to process the suit.
7. There appears to be an apparent contradiction in the impugned judgment, as on the one hand the learned Judge has himself held that the suit is not liable to be dismissed on account of misjoinder of causes of action or of plaintiffs and on the other hand proceeded to dismiss the suit on the ground that the appellants have failed to exercise the option as to who will proceed with the suit.
8. In the above perspective, we have examined the impugned judgment and find that the same is not sustainable in law, thus, we are inclined to set aside the same.
' In view of the above, the appeal is allowed and the impugned judgment and decree is set aside with no orders as to costs. Resultantly the appellant's suit shall be deemed to be pending before the learned Banking Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.