' MIAN HAMID FAROOQ, J.---Present appeal, filed by Mirza Naseem Ahmad and others, appellants/objectors, under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, proceeds against order dated 2-2-1995, whereby the learned Judge Banking Court dismissed the objection petitions, filed by the appellants and others, and ordered for the issuance of warrants of possession.
2. Brief facts leading to the filing of the present appeal, as discernible from the available record, are that pursuant to the passing of decree for the recovery of Rs,9,80,510 with costs, against one Fazal Din, predecessor-in-interest of respondents Nos, 3 to 13, favouring the Grindlays.Bank, respondent No,2, by the then learned Special Judge Banking, vide judgment and decree dated 13-11-1982, the decree-holder-bank filed an execution petition for the realization of a sum of Rs,10,21,760.01. During the execution proceedings, statedly, Property No,S-19-R33-A(ii), Mall Mension, The Mall, Shahrah-e- Quaid-e-Azam, Lahore (hereinafter called the disputed property) was auctioned by the learned Court Auctioneer, under the orders of the learned Banking Court; the bid of respondent No,1 of Rs,20 lacs was accepted; she was declared the highest bidder of the property in dispute; she had, reportedly, deposited the auction amount, and the auction was confirmed on 30-1-1984, by the learned Executing Court. Consequent to the above, on 14-2-1984, respondent No,1 filed an application under Order XXI, rule 95, C.P.C. With the prayer that the sale certificate regarding the property bearing No,S-19-R-33-A-ii, Mall Mension, the Mall, Shahrah-e-Quaid-e-Azam, Lahore, may be issued and thereupon the learned Banking Court issued the sale certificate in terms of the prayer made in the aforenoted application, on 19-3-1984. Faced with the aforenoted circumstances, initially the alleged tenants of the appellants, namely, Jawaid Ahmad Corporation and B.R. Herman Mohta and subsequently the appellants, on 26-3-1984, filed objection petitions, which were contested by respondent No,1, however, ultimately the learned Banking Court directed the appellants to appear personally and also to produce the proof of ownership of the disputed property but finding that the objectors have neither appeared personally nor produced the documents regarding ownership, he proceeded to dismiss the objection petitions vide order dated 2-2-1995, which was, statedly, passed in the absence of the learned counsel of the objectoRs, Later on, a review application was filed by the appellants, but since injunction was refused, thus, the review application was not further processed and the appellants have now impugned the order dated 2-2-1995, through the filing of the present appeal.
3. Respondents Nos,2, 8 to 13 and legal representatives of respondents No,5 and 6 were proceeded ex parte vide order dated 5-5-1999. On 15-5-2002, this Court ordered for the issuance of fresh notice to respondent No,1 and despite the fact that she was served, none has entered appearance on her behalf, either on 9-7-2002, or today, thus, having no alternative we are constrained to proceed ex parte against respondent No,1, too.
4. Learned counsel for the appellants has contended that the real controversy involved in the objection petitions, before the learned Banking Court, was as to whether the total property bearing No,S-19-R-33-A or its portion was auctioned and purchased by respondent No,1 and the title of the appellants qua the property claimed by them was not in issue before the Banking Court, therefore, the objection petitions could not have been dismissed on the ground that the appellants did not appear and failed to produce the titled documents qua the property claimed by them. He has further contended that the learned Banking Court was under an obligation to decide the objection petitions after recording the evidence.
5. Undoubtedly the appellants and other persons filed objection petitions before the learned Banking Court thereby praying that the Court sale and consequent sale certificate issued in favour of Dr. Sadiqa Sharif do not cover Property No,S-19-R-33-A-ii housing M/s. Javaid Corporation on the ground floor and Messrs B.R. Herman & Mohatta in the upper floor, which was contested by respondent No,
1. To our mind the real question involved before the learned Banking Court was regarding the identification of the property, which was auctioned under the orders of the Banking Court and purchased by respondent No,
1. The learned Banking Court ought to have provided an adequate and sufficient opportunity to the appellants for estiblishing their claim and to substantiate their case, as made out in the objection petitions. It was all the more necessary, when the rights, title and interest of the objectors have to be decided by the Executing Court only and in this regard, under the law, no separate suit lies to establish such a right, title or interest. In this case, we find that the learned Banking Court has not cared to investigate the claims of the appellants in accordance with law, adopted a short cut method in deciding their objection petitions and thus they have been non-suited on erroneous grounds. If the learned Banking Court had provided an opportunity to both the parties to establish their respective claims and resorted to the record of the case, it could have easily determined the extent of property, which was auctioned by the learned Banking Court. We cannot appreciate the mode and novel fashion, through which the learned Banking Court has decided the objection petitions. There is no cavil to the proposition that the Courts should be careful in deciding the causes, as they always involve the valuable rights of the parties. Obviously respondent No,1 was entitled to the ownership rights and possession of the property, which was auctioned and purchased by her but that does not mean that under the garb of auction, the properties belonging to others could be given to the auction-purchaser and these facts could have easily been determined by the learned Banking Court after the examination of the available record and recording the evidence of the parties. We are of the view that in this case the objection petitions should have been decided after framing the issues and recording the evidence of the parties, through which it could have easily been determined as to whether the property, statedly, owned by the appellants and allegedly possessed by their tenants was the subject- matter of the auction or not. The perfunctory manner in which the matter has been dealt with by the learned Executing Court, through the impugned order, is violative of the provisions of law and even against the principles of natural justice, as we feel that by dismissing their objection petitions, the appellants have been condemned unheard.
6. There is yet another aspect of the case, which cannot be ignored. After the examination of the impugned order we find that the same is sketchy, slip-shod and devoid of reasons. The said order is not at all a speaking order and cannot be called a "judicial order" within the parameters set up by law. The tenor of the order amply manifests non-application of judicial mind and no reasons have been assigned by the learned Judge in coming to the conclusions, while dismissing the objection petitions. Even it has been enjoined upon an executive authority, as per section 24(A) of General Clauses Act, 1897 (inserted by General Clauses (Amendment Act, 1997, D Act No,XI of 1997) to give reasons for making the order.
7. Hon'ble Supreme Court of Pakistan has time and again disapproved the passing of such perfunctory orders in the causes involving valuable rights of the parties. It is settled law that the judicial order must be a speaking order manifesting by itself that the Court has applied its judicial mind to the issues and the points of controversy involved in the causes. Furthermore, when the reasons would not be forthcoming, obviously the Appellate Court would be deprived of the views of the subordinate Court. In any way the impugned order, which is not a speaking order and devoid of reasons is not sustainable in law being in contravention of law declared by the Hon'ble 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), Mollah Ejahar All 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. In the light of above, we have examined the impugned order and find that the same is not sustainable in law, thus, we have no alternative except to set aside the same and remand the case to the learned Banking Court for its decision afresh.
9. In the above perspective, the present appeal stands accepted and the impugned order dated 2- 2-1995, passed by the learned Banking Court is hereby set aside with no order as to costs. The result would be that the objection petitions, filed by the appellants and their alleged tenants, shall be deemed to be pending before the learned Banking Court, who is directed to decide the same, afresh, after hearing the parties, framing the issues and recording the evidence, of course, in accordance with law. Office is directed to immediately transmit the total record of the case to the learned Administrative Judge Banking Court, who may decide the case himself or entrust the same to another learned Judge according to its own administrative arrangements.