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Regular First Appeal No.130 of 1981, decided on 15th March, 1987.
---S.12--Application for amendment of memorandum of appeal- Application for amendment of memorandum of appeal, filed after about six years of institution of appeal was dismissed.
--Ss.6, 7 & 12--Civil Procedure Code (V of 1908), O.XXXVII, R.3-- Suit for recovery of loan-- Application for leave to defend suit--Where articles pledged by borrower with Bank, admittedly were in possession Of Bank, Trial Court should not have insisted on deposit of entire disputed amount in Court as condition for grant of leave to defend suit--Order of Trial Court for deposit of entire suit money while goods of borrowers were still in custody of Bank, being arbitrary and unfair was set aside by Appellate Court and case remanded for hearing and decision according to law.
Syed Manzoor-ul-Haq Gilani for Appellants.
Nemo for Respondent.
Date of hearing: 15th March, 1987.
-In a suit for recovery of ' Rs.4,43,984.05 by United Bank Limited, Clock Tower Branch, Faisalabad, the learned Special Judge Banking on 21-1-1981 granted leave to defendants to appear and defend the suit with a further direction that they will deposit the entire suit money in Court. The suit was adjourned to 26-1-1981 and again to 4-2-1981 for deposit of the amount. In the meanwhile the defendants filed writ petition in the High Court in which the order of deposit of the suit money vas stayed. After decision of the writ petition the suit was placed before learned Special Judge Banking on 2-7-1981. As the defendants had failed to deposit the suit money the learned Special Judge proceeded to record the statement of learned counsel for the plaintiff who tendered in evidence various documents. The plaintiff's suit in the sum of Rs.4,43,984.05 was decreed with costs and interest on 2-7-1981. Hence this appeal.
2. We have heard the learned counsel appearing for the appellant and also perused the record.
An application C.M.1302-C of 1987 seeking amendment in the memorandum of appeal was filed by the appellant on 14-3-1987. We have examined this petition. There is no justification to allow, amendment of the memorandum of appeal. This petition has been filed after about six years of the institution of present appeal. It is accordingly dismissed.
3. It is not denied that the plaintiff bank was in possession of the articles pledged by the defendants. This fact was admitted by learned counsel for the plaintiff when on 2-7-1981 he tendered in evidence certain documents in support of the claim. As such we are of the view that the learned trial Judge should not have insisted on deposit of the entire disputed amount in Court as condition for grant of leave to defend the suit. The order for deposit of the suit money was, therefore, arbitrary and unfair. In view of the fact that articles of the defendants were still in custody of the plaintiff, the order of deposit of the entire suit money cannot be maintained. In view of this we set aside the judgment and decree, dated 2-7-1981 and remand the suit to Special Judge Banking, Multan for hearing and according to law. The parties will bear their own costs of this peat. The defendants will furnish security to the satisfaction of learned trial Judge in the sum of Rs.4,43,984.05 within one month of this order. The parties are directed to appear before learned Special Judge Banking Multan on 5-4-1987 where the office will remit record immediately.
H. B. T./Q-3/L Appeal accepted.
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