WAZIR COTTON GINNERS AND OIL MILLS vs BANK OF PUNJAB First Sched — 2025 CLD 863 LAHORE-HIGH-COURT-LAHORE

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WAZIR COTTON GINNERS AND OIL MILLS VS BANK OF PUNJAB First Sched., art.181---Civil Procedure Code (V of 1908), O.IX, Rr.3, 8, & 13---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.12---Restoration of an application dismissed for non-prosecution---Limitation---Limitation for filing an application for restoration of an earlier application i.e. application for setting aside ex-parte decree by the Banking Court, which was dismissed for non-prosecution, was governed by art. 181 of the Limitation act, 1908, providing 3-years limitation period. Citation Name: 2025 CLD 863 LAHORE-HIGH-COURT-LAHOREBookmark this Case WAZIR COTTON GINNERS AND OIL MILLS VS BANK OF PUNJAB Ss.12 & 22---Civil Procedure Code (V of 1908), O.IX, Rr.3 & 13---application seeking to set aside ex-parte decree---appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance---Co-existent remedies against ex-parte decree by Banking Court---Doctrine of election of remedies not attracted---appeal withdrawn in order to pursue the remedy under O. IX, R. 13, C.P.C.---application under O.IX, R. 13, C.P.C. dismissed for non-prosecution and restoration of same also dismissed---Dismissal for non-prosecution is not fatal if ignorance bona fide---Technical defaults must not override substantive justice---The appellants had challenged the ex-parte decree passed by the Banking Court by seeking two remedies side by side i.e. one by filing an application under O. IX, R. 13, C.P.C. for setting aside ex-parte proceedings and judgment and decree before the Banking Court and another by filing an appeal before the High Court which was later withdrawn by the appellants with permission to pursue the remedy before the Banking Court under O. IX, R.13 of C.P.C.---When the appellant approached Banking Court to pursue their said remedy it was found out that their application under O. IX, R.13, C.P.C. was dismissed for non-prosecution---Consequently, the appellants then filed application for restoration of their application which was pending under O. IX, R.13, C.P.C. which was also dismissed by the Banking Court vide order dated which was impugned before the High Court in the instant appeal---High Court considered that "Whether an application for restoration of an earlier application seeking to set aside an ex-parte decree under O. IX, R.13, C.P.C, which was dismissed for non-prosecution by the Banking Court, remains maintainable in law when the applicant, unaware of such dismissal, withdraws a pending appeal against the same ex-parte decree before the High Court to pursue the said remedy before the Banking Court, and whether dismissal of the restoration plea on purely technical grounds, without adjudication on merits, amounts to denial of fair adjudication in terms of the Financial Institutions (Recovery of Finances) Ordinance, 2001? Held: The impugned order of Banking Court dismissing the application for restoration of earlier application filed by the appellants for setting aside ex-parte decree did not show that proper consideration had been given to the facts of the case while dismissing application on technical grounds solely for the reasons that the appellants had sought to pursue remedy by filing application for setting-aside ex-parte decree before the Banking Court, which application already stood dismissed for non-prosecution on 07.02.2019 and subsequent application filed on 15.07.2021 for its restoration was held to be not maintainable, which reason was not sustainable for the reason that the appellants had filed the second application for restoration of the first application, which was dismissed through the impugned order without discussing its merits---High Court set-aside the impugned order dated 10.05.2024 passed by Judge Banking Court, with the result that the order of dismissal of application for restoration application was set aside and the said application was allowed with observation that the application for setting-aside ex-parte decree shall be deemed to be pending before the Banking Court, which shall be decided on its own merits in accordance with law---appeal was allowed, in circumstances. Citation Name: 2025 CLD 863 LAHORE-HIGH-COURT-LAHOREBookmark this Case WAZIR COTTON GINNERS AND OIL MILLS VS BANK OF PUNJAB O.IX, Rr.3 & 13---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.12 & 22---Parallel/co-existent remedies---Scope---Doctrine of election does not bar simultaneous legal actions where permissible---Withdrawal of appeal to pursue co-existent remedy---Act of court should prejudice no one---The question for determination before the High Court was whether the application for restoration of earlier application, which was dismissed for non-prosecution on 17.02.2019 was maintainable or not---The appellant had challenged the decree dated 03.10.2017 by availing two remedies; first by filing Regular First Appeal against the said decree on 08.12.2017 before the High Court and another by filing an application for setting-aside ex-parte decree before the Banking Court on 13.12.2017---Although generally it is settled principle of law that when an aggrieved person intends to commence any legal action to enforce any right and/or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and/or choose from amongst the actions or remedies available under the law---Choice to initiate and pursue one out of the available concurrent or coexistent actions or remedy from a forum of competent jurisdiction vests with the aggrieved person---Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and/or achieved by adopting other proceeding/action and/or remedy, which in legal parlance is recognized as 'doctrine of election' yet there was no bar under the law for availing the said two remedies simultaneously, however, the conclusion of one remedy would have resulted in the other remedy as having become infructuous---In the instant case the remedy of filing application for setting aside ex-parte decree initiated on 13.12.2017 resulted in dismissal for non-prosecution, whereas, the co-existent remedy against the ex-parte decree in the form of appeal before High Court was withdrawn by appellant for pursuing the former remedy---Hence, withdrawal of appeal with permission to pursue the former remedy could not be treated to have rendered the remedy of pursuing the application for setting-aside ex-parte decree as infructuous, however, it appeared that on the said date none of the parties was aware of dismissal of the application before the Banking Court and when the appellants approached the said Court for availing the said remedy in terms of permission sought from the High Court, it transpired that the said application had been dismissed---Had it been pointed out by the counsel for the respondent or was within the knowledge of the appellants that the said application had already been dismissed, they might have asked the High Court to decide the appeal on its own merits instead of permitting them to pursue the remedy before the Banking Court for the reason that withdrawal of appeal from the High Court had also deprived them of seeking further remedy against the order passed in that appeal before any higher forum and in such a situation, such an order might cause prejudice to the rights of the appellants to seek remedy available to them under the law----An act of court cannot be allowed to stand in the way of remedy available to a person for the reason that act of court should prejudice no one---In this view of the matter, when both parties were ignorant of fact of dismissal of application for non-prosecution, the conduct of the appellants seeking withdrawal of appeal to seek remedy though application for setting aside ex-parte decree could not be treated as contumacious to disentitle the appellants from pursuing the remedy for its restoration---High Court set-aside the impugned order dated 10.05.2024 passed by Judge Banking Court, with the result that the order of dismissal of application for restoration application was set aside and the said application was allowed with observation that the application for setting-aside ex-parte decree shall be deemed to be pending before the Banking Court, which shall be decided on its own merits in accordance with law---Appeal was allowed, in circumstances. Citation Name: 2025 CLD 863 LAHORE-HIGH-COURT-LAHOREBookmark this Case WAZIR COTTON GINNERS AND OIL MILLS VS BANK OF PUNJAB Ss.12 & 22---Civil Procedure Code (V of 1908), O.IX, R.13---appeal against interlocutory order---Scope---Dismissal of an application which ends proceedings is final order for the purpose of maintaining appeal---Where a restoration application for the application seeking setting aside an ex-parte decree was dismissed, it concluded the proceedings and constituted a final order---Such dismissal cannot be treated as interlocutory---Held: as regards the objection regarding the maintainability of the instant appeal on the ground that same was against an interlocutory order and hence not maintainable it was ruled that the appeal in terms of S. 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was available against all final orders and if it be a decree in the shape of Regular First appeal before the High Court and against all final orders in shape of an appeal against Order, therefore, objection of the learned counsel for the respondent was not sustainable as no other remedy against the said order except through filing of appeal against said order was available to the appellants---The application for restoration of earlier application for setting aside ex-parte decree was dismissed by the Banking court on technical grounds, which had finally disposed of the matter agitated through the said application, therefore, finality was attached to the said order and the same could not be treated as interlocutory order---High Court set-aside the impugned order dated 10.05.2024 passed by Judge Banking Court, with the result that the order of dismissal of application for restoration application was set aside and the said application was allowed with observation that the application for setting-aside ex-parte decree shall be deemed to be pending before the Banking Court, which shall be decided on its own merits in accordance with law---appeal was allowed, in circumstances. Citation Name: 2025 CLD 863 LAHORE-HIGH-COURT-LAHOREBookmark this Case WAZIR COTTON GINNERS AND OIL MILLS VS BANK OF PUNJAB O. IX, Rr. 3, 8, & 13---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.12---Restoration of application dismissed for non-prosecution---Restoration of proceedings favoured when dismissal occurs in absence of both parties---Generally, when both the parties had not appeared in the court when a petition/application is dismissed for non- prosecution, the courts liberally allow application for restoration.

WAZIR COTTON GINNERS AND OIL MILLS vs BANK OF PUNJAB First Sched — 2025 CLD 863 LAHORE-HIGH-COURT-LAHORE

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