2001 PLP 1532 (MLD)

Brief facts out of which the present writ petition arises are that petitioners filed a suit for recovery of Rs.13,337,447 plus mark‑up till realization against the respondents before the Banking Court No.4, Lahore. Respondents filed application for leave to defend before the Banking Court. The Banking Court granted leave to defend to the respondents vide impugned order dated 15‑7‑1999. Petitioners being aggrieved filed this writ petition. Learned counsel for the petitioner submits that the impugned order is a result of misreading of the statement of account which clearly reveals the hand written BF (Brought Forward) and the amount of Rs.7,172,400 which tallies with the amount which had been brought forward on the next page of the statement of accounts as is evident from Annexure D attached with the writ petition. He further submits that the Banking Court completely ignored the facts that FAPC own allowed by the petitioner's Bank shows a balance in the statement of account of Rs.12,922,400 as on 31‑12‑1998 and whereas the entry dated 31‑8‑1998 of FAPC SBP which is separate account maintained by the respondents showed the balance of nil which is in accordance with the record of the Bank. He further submits that respondent No.4 granted unconditional leave to defend to the respondents without application of judicial mind. He further submits that the impugned order is result of misreading and non‑reading of the relevant record available before the Banking Court. He further submits that the learned Banking Court granted the leave to the respondents in violation of the law laid down by the superior Courts. In support of his contention he relied upon the following judgments: M.Y. Malik's case 1993 MLD 1211 and Habib Bank Ltd.'s case 1987 CLC 1002. Learned counsel for the petitioner was asked what is the stage of the suit before the Banking Court. He replied that the case is fixed before the Banking Court for evidence of the parties. When the learned counsel for the petitioner was asked whether the writ petition is maintainable against the interim order. He submits that the learned Banking Court decided the case without applying his mind. Therefore, writ petition is maintainable as the petitioner has no alternative remedy of appeal or revision under the Banking Laws against the impugned order.

2. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. The impugned order of the learned Banking Judge cannot be said to be without jurisdiction or in excess of jurisdiction but the petitioner has invoked the Constitutional jurisdiction for the reason that no right of appeal is provided. The factum that no right of appeal is provided under the special law or that which expressly barred a right of appeal simpliciter will not itself justified including Constitutional jurisdiction for the purpose that the Constitutional remedy is available to the petitioner! The superior Courts prescribed the following conditions:. (i) ??????? Impugned is without jurisdiction ?or (ii)??????? In excess of jurisdiction or (iii)?????? Suffers from infirmity of the nature which would involve jurisdictional defect. Learned counsel for the petitioner failed to point out that the impugned order was passed by the Banking Court in violation of the aforesaid conditions prescribed by the Superior Courts. The impugned order is of interlocutory in nature. The question, therefore, arises if when the law has expressly barred as appeal or other remedy from interlocutory order, should the party be permitted to circumvent that law by recourse to the Constitutional jurisdiction of this Court. The question has by now been settled by the superior Courts that (sic) a Division Bench of this Court in Muhammad Saeed's case (PLD 1978 Lahore 1459) considered this proposition of law and laid down the following principle: ' "It, therefore, follows that what the Legislature held to be an inter?locutory order not by itself fit to be appealable should not by such a device be held fit enough to attract the more important, and at a higher level, the Constitutional jurisdiction. Any condition or practice to the contrary would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain's case (1976, SCMR 450)." The Hon'ble Supreme Court in the aforesaid case of Mumtaz Hussain laid down the following principle: "As the said Ordinance (W.P. Qaqf Properties Ordinance XXVIII of 1951) has taken away the right of the petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings in the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law. That was also the view taken by this Court in Syed Muhammad Ali Shah Bokhari v. The Chief Administrator of Auqaf, Punjab, Lahore and others 1972 SCMR 297 and we respectfully agree with it." I am also fortified by the following judgments: Khokhar Engineering Company's case 1986 MLD 2941; National Bank of Pakistan's case PLD 1985 Lahore 150; Suleman Mehmood Mill's case PLD 1982 Lahore 353 and Messrs Narumal Jetomal's case 1983 CLC 2695. In view of what has been discussed above, this writ petition is not maintainable and the same is dismissed. It is pertinent to mention here that judgments cited by the learned counsel for the petitioner did not support the cause of the petitioner as the cited judgments did not arise out of a Constitutional jurisdiction. Q.M.H./M.A.K./D‑20/L????????????????????????????????????????????????????????????????????? Petition dismissed.