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First Appeal No.22 of 1978, Suits Nos.71 of 1970 and 103 of 1976, decided on 10th September, 1987.

---O.IX, R.7 & S.96--Ex parte proceedings against defendant for non-appearance on date of hearing--Application by defendant for re-opening of case--Objections to such application invited by Court--No objections were filed by plaintiff against application for re-opening of case--Defendant and his counsel not appearing on the date fixed for filing objections--Judgment and decree passed by Court against defendant on that very date-Effect--Where suit was fixed for filing objection by plaintiff to the application for re-opening of case, Court, held, could not pass Judgment and decree on that date--Finding of Trial Court was' set aside with direction to decide case afresh in accordance with, law.

Jhamat Jethanand-for Appellant.

Manzoor Ahmed Khan for Respondent.

Dates of hearing: 9th and 10th September, 1987.

-This appeal is directed against the judgment and decree dated 21st January, 1978 passed by the learned Senior Civil Judge Badin in Suit No:71/70 renumbered 103 of 1976, which was filed by the respondent on 24-3-1970 for recovery of Rs.1,59,060 in respect of the overdraft facility. It appears that appellant took nearly 4 years to file the written statement which was filed on 16-9-1974, Issues were framed on 30-11-1974, It. appears that the evidence" of the respondent was concluded on 27-1-1675. After that the matter remained pending for evidence of-the appellant. The side of the appellant was closed on. 20-11-197.6. On 22-12-1976 appellant filed an application under Order IX, Rule 7 C.P.C. for re-opening his side, which application was dismissed in default on 22-1-1977. The appellant filed second application under Order IX, Rule 7 C.P.C. on 26-3-1977' with the same prayer, which was again dismissed in default on 21-5-1977. The appellant filed 3rd application under Order IX, Rule 7 C.P.C. on 21-7-1977. After that the case was fixed for filing objections to the above application by the respondent inter alia on 18-8-1977, 24-9-1977, 10-11-1977, 10-12-1977 and 21-1-1978. On the latter date neither the appellant nor his counsel was present. However, no objection to the above application was filed by the respondent. The learned Senior Civil Judge instead of passing any order as to the non-filing of the objection dismissed the above application and passed, the judgment and decree. The appellant being aggrieved by the above judgment and decree has filed the present appeal.

2. We have heard the learned counsel for the appellant and the respondent on the question whether on 21-1-1978 when the case was fixed for filing of objections by the respondent to the appellants' 3rd application under Order IX, Rule 7 C . P. C . , the learned trial Court could have passed the judgment and decree.

3. Mr. Manzoor Ahmed Khan, learned counsel for the respondents has vehemently submitted that mala fide on the part of the appellant is apparent inasmuch as he took 4 years time to file the written statement. He did not produce his, evidence, got his two applications under Order IX, Rule 7 C . P. C . dismissed in default and that even in this appeal he managed to get delayed the preparation of paper book for 8 years.

3-A. On the other hand Mr. Jhamat Jethanand, learned counsel for the appellant has submitted that the alleged previous defaults on the part of the appellant would not entitle the learned trial Court to pass judgment and decree on 21-1-1978 when the case was fixed only for, the purpose of filing objections by the respondent to the appellant's application who had taken several dates for the above purpose.

4. We are inclined to hold that if the suit was fixed for filings objections by the respondent to the appellant's above application under Order IX, Rule 7 C.P.C. though it was the 3rd application, the learned trial court could not have passed the judgment and decree on the same day. The judgment and decree are set aside however subject to the condition that the security already furnished in the above appeal shall remain intact and, the learned Special Banking Court will examine the question whether the security furnished in this appeal is proper and sufficient to meet the suit claim and in case it is not proper and/or sufficient, fresh security will be asked for the suit amount. We would also direct the learned Special Banking Court to dispose of the suit within 3 months from the receipt of a copy of this judgment. The learned Special Court will proceed from the state at which the suit was when the judgment under appeal was passed.

H. B. T./N-60/K Appeal accepted/Order, accordingly.

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