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Miscellaneous Appeal No. 7 of 1985, decided on 11th November, 1986.
‑‑‑S. 6‑‑Suit for recovery of loans‑‑All such suits stood transferred to Special Banking Court having exclusive jurisdiction by order of High Court on promulgation of Ordinance XIX of 1979‑‑Trial Court where the suit was originally filed being devoid of jurisdiction, held, could not dismiss such suit for non‑prosecution on ground that plaint was absent on date of hearing.
‑‑‑S. 6‑‑Suit for recovery of loans, dismissal of‑‑Suit for recovery of loans was dismissed in default by Trial Court at preliminary stage when even defendants were not served‑‑Suits, held, were to be disposed of ‑‑on merits and at preliminary stage Trial Court should not take too much technical view of the matter.
P L D 1965 S C 669 ref.
Muhammad Shafi for Appellant.
Nemo for Respondents.
Date of hearing: 11th November, 1986.
The appellant brought a suit for the recovery of amount against the respondents. It was stated in the plaint that the respondents were granted over draft facilities of Rs.1,50,000 at the request of the defendants/ respondents and in consideration thereof respondents executed the demand promissory note, dated 8‑3‑1976. The defendants had not been served and the suit was dismissed for non prosecution, as the plaintiff and their Advocate were called absent and the cost was also not paid. An application for setting aside that order was filed by the counsel for the plaintiff stating therein that on 26‑3‑1984 he attended the Court to find out the next date in as such as due to the transfer of cases of banks to the Special Court of Banking, he was informed that on transfer of the case to Special Court of Banking he shall be served by the Court motion but he did not receive any notice. The application was filed on 12‑9‑1984. This application was rejected by the learned Additional District and Sessions Judge on the ground that the delay has not been explained and the diary of the case shows that the next date of hearing was given to the plaintiff's counsel in his presence and that plaintiffs counsel was negligent as he has not looked after his case for about five months.
2. The learned counsel for the appellant has submitted that no date was given in presence of counsel and Mr. Mazhar Mustafa counsel for the appellant has sworn an affidavit. He has further submitted that all the cases were transferred to Special Court of Banking by the learned District Judge and the learned District Judge has also made a reference to this Court which reference was accepted and it was held that Special Court had exclusive jurisdiction in view of Ordinance XIX of 1979 and no other Court had jurisdiction to try such cases, and all the cases stood transferred as provided in section 6(4) of the Ordinance. It is contended that in view of the order of the High Court the order of the learned District Judge is nullity in the eye of law. This contention has force as the Banking Court had the exclusive jurisdiction after the enforcement of the Ordinance, therefore, the suit could not be dismissed by the trial Court. Even otherwise the counsel for the appellant has filed his personal affidavit in support of his contention. The suit was at the preliminary stages. the defendants had not been served. It is always the practice of the Courts that the suit be disposed of on merits and at the preliminary stage the learned Additional District Judge B should not have taken too much technical view of the matter. Learned counsel for the appellant has referred to P L D 1965 S C 669 wherein it has been observed that it would be wrong to make the plaintiff suffer on account of the professional misconduct of the counsel.
3. ' For the aforesaid reasons, I accept this appeal, set aside the order impugned in this appeal and restore the suit for trial. As the respondents have not contested this appeal, there would be no order as to costs.
H.B.T./5131/K Appeal accepted.
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