2000 PLP 453 (MLD)

This application has been filed under section 151, C.P.C. seeking stay of proceedings in the present suit till disposal of Suit No. 1307 of 1998, filed by defendant No. l against the plaintiff and two others, pending in this Court. According to defendant No. 1, the relief, claimed in Suit No. 1307 of 1998, pertains to the very Letters of Credit as are sought to be enforced in the present proceedings. The question which needs to be examined, at the outset, is if this Court acting as Banking Court under the provisions of Act XV of. 1997, can stay the proceedings in exercise of inherent powers under section 151, C.P.C. The above question has arisen for consideration on account of provision, contained in section 9(2) of Act XV of 1997, which is as follows:-- "Section 9(2).

The provision of section 10 of the Code of Civil Procedure, 1908, shall have no application for and in relation to suit filed hereunder. " The provisions of section 10 of the Code of Civil Procedure may also be reproduced here for convenient reference:-- "

10. Stay of suit.

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and having like jurisdiction, or, before the Supreme Court. Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in Pakistan from trying a suit founded on the same cause of action." It is urged by Mr. S. Shrifuddin Pirzada, Advocate that section 10, C.P.C. is attracted only to such cases in which the conditions, prescribed therein, are shown to exist. The provision of section 10, C.P.C., it is further urged, is not exhaustive in relation to power of Court to stay the proceedings. According to the learned counsel, a Civil Court, undisputably, enjoys inherent power to stay further proceedings if the circumstances so warrant. The learned counsel has referred to the case of K.R. Balaji Rao and others v. M.G. Natesa Chetty (AIR 1948 Madras 138), S. Komarappa Goundan v. Ramaswamy Goundan (AIR 1948 Madras 150), M/s. Shafiq Hanif (Pvt.) Ltd., Karachi v. Bank of Credit and Commerce International (Overseas) Limited, Karachi (PLD 1993 Kar. 107) and Attock Oil Company v. Ghaith Rashid Pharaon and others (1996 CLC 1657) to support the principle that section 10, C.P.C. only codifies the principle of res sub judice. The object of the rule is to avoid conflicting findings and to ensure complete justice to the parties. If necessary and found in the interest of justice, one or the other successive suits can be stayed or can be amalgamated or even refused to be stayed as equities may require". The Legislature, according to the learned counsel, was cognizant of the power enjoyed by the Courts and enforceability of the principle of res sub judice in exercise of inherent authority besides section 10, C.P.C. Notwithstanding, the above section 10, C.P.C. alone was excluded from operation in regard to proceedings under the Banking jurisdiction. The provisions under the Code of Civil Procedure, having been extended to proceedings, like the present, under Banking jurisdiction, section 10 thereof is to be assumed as non-existent and inherent powers can be exercised in order to avoid conflicting judgments. It is further asserted that the specific exclusion of section 10, C.P.C. is indicative of continued applicability of section 151, C.P.C. to the present proceedings, with full force inclusive of the power to. stay the proceedings. I have considered the provisions of law, referred by the learned counsel as well as the case-law, cited at bar. While it is true that section

10. C.P.C. is not exhaustive of the power of Court to stay proceedings, the provisions, contained in subsection (2) of section 9 of the Act XV of 1997 excludes its applicability to the proceedings under the Banking jurisdiction. The exercise of inherent powers in aid of justice is an acknowledges proposition of law. The negative clause excluding applicability of section 10C.P.C., however, has to be given complete effect. The purpose of promulgation of Special Law arid setting up Special Courts/Benches for deciding cases thereunder is obvious and the delay in adjudication of claims by or against the Banking Institutions was, evidently, intended to be curtailed. One of the known grounds which caused delay in disposal of cases, under Banking jurisdiction, was institution of pre-emptory suits, filed in anticipation of recourse to legal proceedings by the adversory. Consequently, notwithstanding the logic and equity behind the principle of res sub judice, provision in negative terms was incorporated to exclude applicability thereof. The effect of negative provisions is far greater than deletion. The object of section 9(2) of Act XV of 1997, ex facie, is to provide for continuance of proceedings instituted under Act XV of 1997 and to thwart any attempt to defeat such purpose. The acceptance of proposition convassed by Mr. S. Sharifuddin Pirzada, Advocate shall amount to circumventing the provisions, contained in section 9(2) of Act XV of 1997 and defeating the object of the special legislation. In none of the cases, cited by the learned counsel at bar, provisions like section 9(2) of Act XV of 1997, had come up for consideration. The principle, contained in the cited cases is, too, well established and inherent powers can be exercised by a Civil Court to stay proceedings, in case, conditions of section 10, C.P.C. are not fully met in a given case. The moot principle underlining such approach is that inherent powers can; always, be exercised to advance cause of justice and in the absence of any express provisions to the contrary. In the present case, the negative provisions, contained in section 9(2) of Act XV of 1997, in my view, forbid exercise of inherent power to stay legal proceedings. Moreover, inherent power can be exercised only where specific provision does not exist. The present application, preferred under section 151, C.P.C., therefore, is dismissed being not maintainable. H. B. T. /1-70/K Application dismissed.