Law: Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)

Section: 10,9

Law: Civil Procedure Code (V of 1908)

Section: O.IX,Rr.8,9

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--Ss. 9 & 10---Civil Procedure Code (V of 1908), O.IX, Rr. 8 & 9---Dismissal of suit for non-prosecution---Suit not fixed for hearing---Pre-occupation of counsel---Case was fixed for arguments on application for leave to defend the suit, when due to absence of the plaintiff as well as his counsel, the Banking Court dismissed the suit for non-prosecution--¬Application under O.IX, R.9, C.P.C. was filed by the-plaintiff to set aside the order but the same was dismissed and the suit was not restored---Contention of the plaintiff was that his counsel was busy in the High Court and in support of such assertion the counsel had filed his affidavit--¬Validity---If the plaintiff or his counsel was absent on the day, at the best, the Banking Court could have accepted the application for leave to defend the suit but was not competent to dismiss the suit on that date, as the suit was not fixed for hearing---Date fixed was not a "date of hearing" as contemplated under the law thus the suit could not have been dismissed for non-prosecution---Banking Court, did not advert to the basic aspect of the case and proceeded mechanically to pass the dismissal order which was not sustainable in law, as the same had been passed without taking into consideration the law on the subject--¬Banking Court failed to consider the plea raised by the plaintiff for the absence of his counsel, who was busy in the High Court and in support of that assertion he filed his own affidavit---Order passed by the Banking Court was not sustainable in law, as the same was passed in complete ignorance of the record of the case and law on the subject--¬High Court set aside the order passed by the Banking Court and remanded the case to Banking Court for decision on merits. ORDER Appellant/ plaintiff, through the filing of the present appeal, has called in question orders dated 4-12-2001 and 10-12-2001, whereby appellant's suit was dismissed for non-prosecution and his application for the restoration of the suit was also rejected, respectively. 2. Precisely stated, the facts leading to the filing of the present appeal are that the…

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