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High Court Appeal. No. 26 of 1984, decided on 21st April, 1987.
---S.4--Civil Procedure Code (V of 1908), S.12(2)--Appeal against order on application under S.12(2), C.P.C., filed by respondent in suit for recovery of loan whereby Court dismissed the suit as barred by time--Court, in order of dismissal citing a para. of plaint which had a bearing on point in issue but neither touching upon same nor giving any finding on disputed question that suit was not one filed under provisions of Ordinance XIX of 1979 but was an ordinary suit--Case remanded and decree against judgment-debtor in suit set aside.
Liaquat Merchant for Appellant.
Syed Shahenshah for Respondents.
Date of hearing: 21st April, 1987.
--This appeal is directed against an order, dated 12-3-1984 passed by a learned Single Judge upon Judicial Miscellaneous Application No. 12/84 filed under section 12(2), C.P.C. filed by present respondent No.2 in Suit No. 675/81, whereby the learned Single Judge set aside the ex parte decree against him
2. The brief facts leading to the filing of the above appeal are that the appellant-bank filed aforesaid suit for the recovery of Rs. 65,500 on or about 9-2-1981. The above suit was not contested by any of the defendants and, therefore, an ex parte decree was passed against respondent No.1 as the principal debtor and respondent No.2 as the surety.
3. Respondent No.2 after discovering the fact of the passing of the above decree filed aforesaid J. Misc. Application for dismissing of the suit against him on two grounds, namely, that the suit was time-barred on the face of the averments contained in the plaint and, secondly, that the decree was obtained by fraud. The above application was opposed by the present appellant. However, the learned single Judge by his order under appeal dismissed the suit against respondent No.2 on the ground that the suit was time-barred in view of the averment contained in para. 11 of the plaint as to the service of the notices. The appellant being aggrieved by the above order has filed the present appeal.
4. In support of the above appeal Mr. Liaquat Merchant, learned counsel for the appellant, has urged as follows:-
(1) That while allowing the respondent No.2's aforesaid application the learned single Judge has overlooked the averment contained in paras. 12 and 13 of the plaint and has given undue emphasis on the contents of para. 11.
(2) That the effect of section 4(2)(3) of the Banking Companies (Recovery of Loans) Ordinance, 1979, hereinafter referred to as the Ordinance, has not been taken into consideration.
(3) That in any case the aforesaid application could not have been decided without recording of the evidence.
5. On the other hand, Mr. Shahenshah Hussain, learned counsel for the respondent No.2, has contended as under:-
(1) That factually the appellant has not raised any plea as to the application of the proviso of section 4 of the Ordinance in their counter-affidavit to the above application and it was not so argued.
(2) That in any case section 4(3) has no application to the present suit as it was a suit simplicitor for money and not for the attachment and sale of the property in terms of subsection (3) of section 4 of the Ordinance.
(3) That since the learned single Judge has decided the question of limitation on the basis of the averments contained in the plaint, it was not necessary to have recorded any evidence.
6. Mr. Liaquat Merchant has also submitted that the appellant would have no objection if the decree against the respondent No.2 remains set aside but the learned single Judge may decide the application afresh after providing an opportunity to both of the parties to lead evidence. This suggestion has been opposed by Mr. Shahenshah Hussain as according to his submission the appellant wish to improve their case.
7. Be that as it may, we have noticed from the order under appeal that the learned single Judge has cited para. 12 of the plaint, which has some bearing on the point in issue but has not touched upon the same nor there is any finding of the learned single Judge on the question that the suit was not under the Ordinance but was an ordinary suit. We would not like to touch upon the submission of Mr. Shahenshah Hussain that subsection (3) of section 4 of the Ordinance-is not applicable as we intend to remand the case to the learned single Judge, where he would have full opportunity to urge this point. In our view, it would be just and proper order to remand the case to the learned single Judge with the condition that the decree against respondent No.2 remains set aside and it will be open to respondent No.2 to urge either the question that the suit was not filed under the provision of the Ordinance or that section 4(3) was not attracted to the suit or that the decree was obtained by fraud by the appellant. We may further observe that the learned counsel for the appellant has submitted at the Bar that the appellant-bank shall initiate proceeding for the recovery of the decretal amount against respondent No.1 against whom the decree has not been set aside. It will also be open to the parties to urge the question, whether the application is to be decided by the learned single Judge or by the special Court under the Ordinance or whether the evidence is to be recorded or not.
8. The appeal stands disposed of in the above terms with no order as to costs.
M.Y.H./H-45/K
Case remanded.
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