2019 PLP 205 (CLD)

AMIN-UD-DIN KHAN, J.

Through this writ petition the petitioner, who is plaintiff of a suit for declaration, has challenged the judgment dated 03.06.2017 passed by the learned Additional District Judge, Sheikhupura whereby a revision petition filed by the petitioner was dismissed and the order dated 17.02.2016 passed by the learned Civil Judge 1st Class, Sheikhupura whereby the review petition against order dated 29.09.2015 was dismissed and the order dated 29.09.2015 passed by the learned Civil Judge 1st Class, Sheikhupura whereby an application moved by the defendants/respondents Nos.6 and 6-A under Order VII, Rule 10 of the C.P.C. was accepted and plaint was returned to present before the proper forum.

2. In a suit filed on 23.07.2012 the plaintiff/petitioner challenged registered sale deeds Nos.1275 and 1277 registered on 22.04.2006 with regard to the land fully described in the plaint. The registered sale deeds are on behalf of plaintiff for sale of land in favour of defendants Nos.1 and 2, respectively. The plaintiff also challenged mutations Nos.340 and 341 attested on 29.04.2006 on the basis of said sale deeds and mortgage of suit property by defendants Nos.1 and 2 with respondent No.3-A (The Bank of Punjab Tufail Road Branch, Lahore) through registered mortgage deed No.1753 registered on 30.05.2006 for securing the loan against mortgage of property.

3. The Bank moved an application under Order VII, Rule 10 of the C.P.C. for return of plaint stating that Banking Court has exclusive jurisdiction to entertain and try the matter, as admittedly the property was mortgaged with the Bank against which loan has been advanced on the basis of mortgage. Learned trial court accepted the application vide order dated 29.09.2015 and returned the plaint. A review petition was filed before the learned trial court on 10.12.2015, which too was dismissed vide order dated 17.02.2016. Thereafter a revision petition (Civil Revision No.1805 of 2016) was preferred before this Court, which was transmitted to the learned District Judge for final hearing after enhancement of pecuniary jurisdiction of learned District Judge. The revision was dismissed by the learned Additional District Judge, Sheikhupura vide judgment dated 03.06.2017. Hence, this writ petition.

4. I have heard the learned counsel for the petitioner at full length and also gone through the record minutely with his able assistance as well as the case law i.e. "Amtex Limited through Director v. BankIslami Pakistan Ltd. and 8 others" (2016 CLD 2007), "Marahaba Pakistan International and others v. Habib Bank Limited and another" (2017 CLD 995), "Messrs Summit Bank Limited through Manager v. Messrs Qasim and Co. through Muhammad Alam and another" (2015 SCMR 1341), "Karachi Electric Provident Fund v. National Investment (Unit) Trust and others" (2003 CLD 1026), "Abdul Rehman Allana v. Citibank" (2003 CLD 1843), "Lahore Beverage Company (Pvt.) Limited through Chief Executive v. Muhammad Javed Shafi and 2 others" (2008 CLC 759) and "Syed Arif Shah v. Abdul Hakim" (PLD 1986 Karachi 189), referred to by the learned counsel for the petitioner.

5. The respondents have been proceeded against ex parte vide order dated 18.04.2018.

6. I agree with the view taken by the learned courts below that with regard to mortgage property qua securing the loan from a financial Institution, exclusive jurisdiction to entertain and try the matter is with the Banking Court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001. The property mortgaged against finance facility with a financial institution, exclusive jurisdiction in the lis is with the Banking Court and no other court can entertain and try this issue. Subsection (11) of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 clearly reads as under:- "All disputes relating to the sales of mortgage property including disputes amongst mortgages in respect of distribution of the sale proceeds shall be decided by the Banking Court."

7. The petitioner has challenged a registered mortgage deed in the suit in favour of financial institution against finance facility pleading that the sale deed by the petitioner/plaintiff in favour of mortgagor is forged and fictitious. The mortgagor was surety and a customer in accordance with definition of "customer" mentioned in Clause (c) of section 2 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Further in accordance with Clause (e) of section 2 of said Ordinance, a mortgage and performance of an undertaking against the mortgagor fell within the ambit of provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 and by virtue of subsection (4) of section 7 of the Ordinance a Banking Court is having exclusive jurisdiction in the matter in issue and civil court was having no jurisdiction. In this context, reliance can be placed upon the judgments reported as "Mst. Arifa Shams through Special Attorney v. Muhammad Imtiaz Ahsan and 2 others" (2012 CLD 483) and "Lahore Beverage Company (Pvt.) Limited through Chief Executive v. Muhammad Javed Shafi and 2 others" (2008 CLC 759).

8. In view of the above circumstances, I have no reason to disagree with the view taken by the learned courts below. The case law relied by the learned counsel for the petitioner is not inconsonance with the facts of this case, therefore, not applicable and beneficial for the petitioner. Even otherwise, for invoking jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is bound under the law to show that the courts/forums below have exercised the jurisdiction not vested in them by law or there is some jurisdictional defect in the orders impugned. Learned counsel for the petitioner could not show any such defect in the orders impugned through this constitutional petition nor I have seen any defect therein, therefore, indulgence of this Court while exercising powers under Article 199 of the Constitution is not warranted through the constitutional petition in hand and as such the instant writ petition being not maintainable stands dismissed. ZC/M-172/L Petition dismissed.