---Ss. 9 & 22--Suit for recovery--Application for leave to defend--Preliminary issue was framed--Suit was decreed instead of deciding preliminary issue--Duty of Court--Direction to--

 PLJ 2023 Lahore (Note) 53
[Multan Bench Multan]
Present: Shakil Ahmed and Sohail Nasir, JJ.
Syed ASLAM SHAMIM ABBASI--Appellant
versus
NATIONAL BANK OF PAKISTAN--Respondent
R.F.A No. 278 of 2017 and C.M. No. 278 of 2017 decided on 2.2.2022.

Financial Institutions (Recovery of Finances) Act, 2001--

----Ss. 9 & 22--Suit for recovery--Application for leave to defend--Preliminary issue was framed--Suit was decreed instead of deciding preliminary issue--Duty of Court--Direction to--Without ascertaining that any of Parties had desired to adduce evidence on issue or any opportunity was given to them or any of them did not press issue, Court could not decide matter through impugned judgment and decree--It was duty of Court to give specific findings on said issue through an independent and speaking order and to proceed further--Appeal allowed.        [Para 6] A

Malik Zafar Mahboob Langrial Advocate for Applicant.

Mian Khurram Hashmi Advocate for Respondent-bank.

Date of hearing: 2.2.2022.

Order

C.M.No. 3834/2021.

For the reasons mentioned in the application that is supported by an affidavit the same is allowed, RFA is restored to its original number with direction to office to fix main appeal for today by issuing supplementary cause list.

MAIN CASE.

2. Having the dispute with regard to adjustment of certain payments made by Syed Aslam Shamim Abbasi (appellant) he filed a suit for declaration against National Bank of Pakistan (respondent). In that suit application for leave to defend by respondent was allowed on 27.06.2015 and the issues were framed and same is still pending in the Banking Court No. 3 Multan.

3. During the proceedings, respondent Bank also filed a suit for recovery against appellant under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and in that suit appellant also submitted an application for leave to defend the suit. Before the application could be decided the learned Banking Court on the basis of a detailed order dated 27.06.2015 framed a preliminary issue which was as under:-

“Whether the rate of mark-up is variable and is to be revised annually?”

4. The proceedings continued thereafter but surprisingly on 21.11.2015 the learned Banking Court instead of deciding the preliminary issue, held that leave to defend the suit shall be deemed to be allowed. He heard arguments on the same day and then passed the decree in favour respondent which has been impugned through the instant appeal.

5. HEARD.

6.  We have observed that without ascertaining that any of the Parties had desired to adduce evidence on the issue or any opportunity was given to them or any of them did not press the issue, the learned Court could not decide the matter through the impugned judgment and decree. In the given circumstances, it was the duty of the learned Court to give specific findings on the said issue through an independent and speaking order and to proceed further therefore, we find it a fit case for remand hence this appeal is allowed. Impugned judgment and decree are set aside and the case is remanded back to the learned trial Court where parties are directed to appear on 22.02.2022. The learned trial Court is directed to decide the preliminary issue after giving ‘right to the parties to produce the evidence if they desire and then to proceed in the matter strictly in accordance with law.

(Y.A.)  Appeal allowed