PLJ 2022 Lahore (Note) 6
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Financial Institutions (Recovery of Finances) Ordinance, (XLVI of 2001), S. 12--Suit for recovery--Decreed--Question of title of property--Pendency of suit--Mortgage deed--Challenge to--Impugned order decided disputed questions of fact with respect to title claim of Respondent No. 4 without framing of issues and recording of evidence--Banking Court could not have decided dispute in favour of Respondent No. 4 especially since question of title of property is still pending before civil Court and should have been proceeded in exercise of its jurisdiction under FIO notwithstanding pendency of title dispute--Appeal allowed.
[Para 5] A & B
Mr. CM Rehman and Chaudhary Abdul Razzaq, Advocates for Appellant.
Mr. Muhammad Akram Pasha, Advocate for Respondents No. 1 to 3.
Mr. Azam Jan Muhammad, Advocate for Respondent No. 4.
Date of hearing: 6.3.2019.
PLJ 2022 Lahore (Note) 6
Present: Mrs. Ayesha a. Malik and Asim Hafeez, JJ.
SME LEASING LIMITED--Appellant
versus
AMJAD AUTOS WORKSHOP, LAHORE etc.--Respondents
FAO. No. 74 of 2017, decided on 6.3.2019.
Order
This Appeal is directed against order dated 1.2.2017 passed by the learned Judge Banking Court-V, Lahore.
2. Facts of the case are that the Appellant filed a suit for recovery against Respondents No. 1 to 3 which was ultimately decreed vide judgment and decree dated 4.5.2016 for an amount of Rs. 2,732,320/-. Subsequently Respondent No. 4 filed an application under Section 12(2) Civil Procedure Code, 1908 (“CPC”) read with Section 12 of the Financial Institution (Recovery of Finances) Ordinance, 2001 (“FIO”) which was partly accepted vide impugned order dated 1.2.2017 by the Judge Banking Court-V, Lahore. Hence this appeal.
3. Learned counsel for the Appellant Bank stated that the impugned order dated 1.2.2017 is not sustainable as disputed questions of fact have been decided without framing of issues and without recording any evidence. The Banking Court concluded that documents submitted to the Bank were manipulated and that the real owner of the property is Respondent No. 4 who has also filed a suit in the Civil Court where the title dispute is pending. Hence the Court directed that the property be taken out of the auction proceedings. Learned counsel further argued that any dispute in relation to title is not relevant for the purposes of the decree and the Banking Court should have dismissed the application under Section 12(2), CPC.
4. Learned counsel for Respondents No. 1 to 3 supported the contention of the Appellant Bank stating that the allegations are false and cannot be proved without recording of evidence. However, learned counsel for Respondent No. 4 supported the impugned order on account of the fact that the matter regarding his title to the property is pending before the Civil Court.
5. We have heard the learned counsel for the parties at length and find that the impugned order decided disputed questions of fact with respect to the title claim of Respondent No. 4 without framing of issues and recording of evidence. In terms of the application under Section 12(2), CPC, Respondent No. 4 alleges that the recovery suit was filed on 2.12.2014 which was decreed on 4.5.2016 without making him a party as he is the lawful owner in possession of the property located at 551 Karim Block, Allama Iqbal Town, Lahore vide Transfer Letter No. MR-251/Part-3506 dated 27.10.2007. Hence there appears to be a title dispute between the Respondents No. 1 to 3 and Respondent No. 4. However the mortgage deed dated 12.1.2012 executed between the Appellant and Respondent No. 1 Amjad Ali is not denied which is relevant for the purposes of the recovery suit. Under the circumstances, the Banking Court could not have decided the dispute in favour of Respondent No. 4 especially since the question of title of the property is still pending before the Civil Court and should have been proceeded in exercise of its jurisdiction under the FIO notwithstanding the pendency of the title dispute.
6. Under the circumstances, the instant appeal is allowed and the impugned order dated 1.2.2017 passed by the Judge Banking Court-V, Lahore is set aside.
(Y.A.) Appeal allowed
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