P L D 1988 Lahore 225 (PLP)

Muhammad Ilyas Khan for Respondent. Date of hearing: 19th December, 1987. MUHAMMAD ASADULLAH, J. This judgment will dispose of this R.F.A. as also R.F.As. Nos.192 to 194 of 1983 titled as follows: "United Bank Ltd. v. Mian Abdul Khaliq "United Bank Ltd. v. Niaz Muhammad" "United Bank Ltd. v. Sultan" as the same involve similar points.

2. The appellant filed four suits, the subject matter of these R. F. As. , for recovery of Rs.53,589, Rs. 7,884, Rs. 5,842, and Rs. 7,561 against the respondents mentioned in each case. The suits were filed on the basis of pronotes under Order XXXVII. of the Code of Civil Procedure, 1908. All the said suits were dismissed by the learned District Judge, Mianwalli, vide orders dated 4 1983 on the sole ground that the stamps on the pronotes had not been cancelled. The appellant has filed these appeals to challenge the said orders of the learned District judge. We have perused. the record and have heard arguments of the learned counsel for the parties.

3. Under section 12 read with section 35 of the Stamp Act, 1899 (Act IV of 1899), a pronote on which the stamps have not been cancelled is not admissible in evidence. The learned counsel for the appellant has conceded this legal position and the point, therefore, need not be elaborated. However, it may be mentioned that subsection (1) of section 12 ibid provides that the adhesive stamps should be cancelled in such a manner that there is no possibility of any reuse of the same. Subsection (2) of the same provides that if such a stamp is not so cancelled the instrument shall be deemed to be unstamped. Section 35 ibid provides that a document which is not duly stamp shall not be admissible in evidence. Therefore, the pronotes in all the four cases, on which admittedly the stamps were not duly cancelled, were not admissible in evidence. The cases of the appellant were based on the said pronotes and naturally when the same were in admissible in evidence the appellant had no proof for their case." especially when the same had been filed under Order XXXVII, C.P. C.

4. The learned counsel for the appellant has argued that before the suits were decided on 4 1983, Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 (Ordinance 11 of 1983) had come into force w.e.f. 30 1983 and the suits, therefore, became exclusively triable by a Special Court constituted under the Banking Companies (Recovery of Loans), Ordinance, 1979 (XIX of 1979), and the learned District Judge should have transferred the cases to the said Special Court. Ordinance XIX of 1979 came into force from 27 1979. Under clause (a) of subsection (2) of section 6 of Ordinance XIX of 1979, Special Court had jurisdiction to try a case in which the outstanding amount of the loan exceeded Rs.1,00,

000. This means that with the enforcement of Ordinance XIX of 1979 the suits up to the value of Rs.1,00,000 were saved from the ambit and purview of the said Ordinance XIX of 1979 and were left to be tried by ordinary Courts. However, with the promulgation of Ordinance 11 of 1983 the said clause (a) of subsection (2) of section 6 of Ordinance XIX of 1979 was deleted, The minimum jurisdiction originally provided in the said clause (a) was eliminated and resultantly it was provided that a Special Judge would try the cases in which the outstanding amount of the loan did not exceed one million rupees and the cases where the value was more 'than the said limit will be tried by the High Court in the exercise of original civil jurisdiction. With the elimination of minimum limit provided in clause (a) ibid all suits relating to loans as defined in clause (d) of section 2 ibid became triable by a Special Judge subject to the maximum limit of one million rupees. Therefore, if the four cases in hand had been filed after the enforcement of Ordinance 11 of 1983, from 30 1983, it would have been a, simple matter because the cases would have been exclusively triable by a Special Court constituted under the provisions of Ordinance XIX of 1979. The cases in hand, however, were instituted well before 30 1983. Therefore, it is to be seen whether the same stood transferred or had to be transferred to a Special Court for trial under Ordinance XIX of 1979. The learned counsel for the respondent has referred to National Bank of Pakistan v. Taj Muhammad P L D 1984 Lah. 417 and has argued that Ordinance 11 of 1.983 did not affect the pending cases and. the same could not be transferred to a Special Court. In that case the learned Division Bench of this Court held that Ordinance 11 'of 1983 did not affect the pending cases relating to the recovery of outstanding. loans up to the maximum limit of Rs.1,00,

000. The law laid down therein is applicable to these cases on all fours. However, the learned counsel for the appellant has referred to Mrs. Yasmeen Nighat and another v. National Bank of Pakistan P L D 1984 Pesh. 188 and has argued, that with the promulgation of Ordinance 11 of 1983 all the cases then pending stood transferred and had to be transferred to a Special Court for trial. It is not necessary to go into the facts of the said Peshawar case as it will be sufficient to mention that in the same the effect of subsection (4) of section 6 of Ordinance XIX of 1979 was not examined and, therefore, the said case is distinguish able from the Lahore case . Subsection (4) of section 6 of Ordinance XIX of 1979 has remained intact except for the addition of a proviso thereto , which is not relevant for our purpose. The said subsection runs as follows: (4) No Court other than a Special Court shall have or exercise jurisdiction with respect to any matter to which the any jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court. It will be seen that under the said subsection all the pending cases which had' become triable by a Special Court stood transferred to the Special Courts concerned automatically by operation of law. The said subsection was added purposely by the legislature so that there was no doubt in regard to the transfer of the pending cases and to make sure it was provided therein that all the cases pending in any Court immediately before the commencing day shall stand transferred to the Special Court. This meant that all those cases pending before 27-3-1979 stood transferred to the Special Courts concerned. However, the said subsection then related only to cases the value of which exceeded Rs.1,00,

000. In other words the said subsection then did not apply to cases the value of which was up to Rs.1,00,

000. The word "commencing day" used the rein mean and relate to a specific date, i.e. 27 1979 and not to any future date simply because Ordinance XIX of 1979 took effect or commenced from the said date. This provision for transfer of cases is especially meant for Ordinance XIX of 1979 and was added in the said law to provide a specific procedure for transfer of cases to a Special Court so that the matter of transfer did not depend on the general law under which there could be more than one interpretations. When a special and specific provision exists in a special law, as the said Ordinance XIX of 1979, is, we have not to fall back upon the general law. Therefore, for determining the matter of transfer of cases it is the provisions contained in the said subsection (4) of section 6 which will apply and no other. When Ordinance 11 of 1983 came into force the jurisdiction of the Special Courts was also extended to cases which had a value of even Rs.1,00,000 or less. However, at that time no separate provision for transfer of pending cases was made in the said Ordinance 11 of 1983. The said Ordinance of 1983 is not an independent law but it is a law which amends Ordinance XIX of 1979 to the extent provided therein. The sections etc of Ordinance XIX of 1979 which have not been amended by Ordinance 11 of 1983 stand intact and are in force as they stand. The said subsection (4) of section 6 stands as it was and as has been reproduced above. This would mean that the provision for transfer of cases has not been affected by Ordinance Il of 1983 and it remains the same as contained in the said subsection (4). This would also mean that when this specific and special provision exists we are not to look into the general law relating to transfer of cases. The said subsection it May be repeated relate::, to transfer of cases which were pending immediately before the commencing day, i.e., immediately before 27 1979. If the cases in hand had been instituted before 27 1979 the matter would have been different because the same would have stood transferred under the said subsection, being pending before the commencing day. However, as pointed out above, the said cases were instituted much later and were not pending immediately before the commencing day i.e., before the date from which Ordinance XIX of 1979 took effect. No specific provision for transfer of the cases pending at the time of the commencement of Ordinance 11 of 1983 was made in the said ordinance, This is not an omission; this is deliberate because if Ordinance 11 of 1983 could provide for transfer of cases from Special Court to another, it could, if go desired, for transfer of pending cases. Again, the provision relating to transfer of the cases pending immediately before 27 1979 already existed in Ordinance XIX of 1979 and if it was intended to extend the scope to cases pending immediately before the commencing day of Ordinance Il of 1983 the provisions contained in subsection (4) ibid would have surely been amended, The cases up to the valuation of Rs.1,00,000 were saved from the ambit of the original Ordinance XIX of 1979 to avoid rush and load of work in the Special Courts. Similarly, the transfer of cases up to the value of Rs.1,00,000 was not intentionally provided for in or through Ordinance 11 of 1983 so that the Special Courts are not flooded with pending cases of a value which originally was considered small for the Special Courts. In other words it was meant that such pending cases should remain triable by the ordinary Courts under the general law instead of being tried and disposed of under the Special Law, i.e. , Ordinance XIX of 1979 as amended by Ordinance 11 of 1983. These aspects have not been discussed in the said case of Peshawar and, therefore, it is distinguishable from the Lahore case. Apart from that the provisions contained in subsection (4) of section 6 of Ordinance XIX of 1979 have not been discussed therein and, therefore, the same is not relevant for the disposal of the present appeals. In view of the discussion above it is quite clear that cases relating to the outstanding amount of the loan up to the value of Rs.1,00,000 which were filed after the commencement of Ordinance XIX of 1979 and before Ordinance 11 of 1983 took effect from 30 1983 remained triable by the Courts which were competent to try the same. In other words such cases instituted on or after 30 1983 were exclusively triable by a Special Court while the case instituted before the said date and after the commencement of Ordinance XIX of 1979 remained triable by the Courts where the same were instituted originally. The cases in hand were instituted on 16 1982, 14 1982, 8 1982 and 16 1982 i.e. after the commencement of Ordinance XIX of 1979 and before the commencement of Ordinance 11 of 1983 and could not, therefore, be transferred to or tried by a Special Court. Accordingly, we hold that the cases were exclusively triable by the learned District Judge, Mianwali and he alone was competent to dispose of the same and the same could not be transferred to or tried by a Special Court.

5. The learned counsel for the appellant has argued that in two cases relating to RFA 192 and RFA 194 of 1983 the appellant had, apart from pronotes, another security in the shape of mortgages in their favour and cases relating thereto should have been transferred by the learned District Judge either to a Civil Court subordinate to him under section 24, C.P.C. or he should have tried the same on the original side. The argument has no leg to stand upon. The cases were instituted under Order XXXVII, C.P.C. and were dealt with accordingly. Rule I of the said Order makes it clear that the provisions contained in Order XXXVII, C.P.C. are of the nature of a special law and apply only to the High Court and to the District Courts only or to another Civil Court duly notified in this behalf by the High Court. This means that the provisions contained therein do not apply to all Civil Courts or to the Courts of Civil Judges not so empowered under rule I ibid. This means that it was the District Judge himself who was seized of the matter and who was competent to try the cases under the special law contained in Order XXXVII, C.P.C. As the provisions of the said Order do not apply to the Courts not covered by rule 1 ibid the District Judge could not transfer the C cases for trial to an ordinary Civil Court. He could not try the cases on the original side under the ordinary law because the cases were not instituted as ordinary cases but had been instituted under Order XXXVII ibid and had to be tried under the provisions contained in the same and not otherwise. He had tried the cases on the original side but not as an ordinary Civil Court but as a Court constituted under rule 1 ibid. It may be added that under the law cases are to be instituted and tried by a Civil Court of the lowest pecuniary jurisdiction within whose pecuniary jurisdiction the same lies. Therefore, ordinary cases cannot be instituted in the Court of a District Judge and cannot tried by him on the original side unless he, transfers a case to his own file from the Court of a Civil Judge. Accordingly the learned District Judge could neither transfer the cases to any other Civil Court nor could try the cases himself under the general provisions of Civil Law.

6. As a result of the above discussion we find that the learned District Judge, Mianwali was fully competent to try and dispose of the cases and the same could not be transferred either to a Special Court constituted under Ordinance XIX of 1979 or to a Civil Court of general jurisdiction and the same could not be tried by him under the general law. Therefore, when the cases relating to R.,F.A. 192 and R.F.A. 194 of 1983 were based on pronotes and not on mortgages! because the same were instituted under Order XXXVII, C.P.C. As already pointed out above in all the cases the pronotes are unstamped D and as such the appellant has no evidence to prove his cases. The learned trial Court, therefore, rightly dismissed the cases. The appeals are, therefore, dismissed. The appeals involved determination of law points and, therefore, the parties are left to bear their own costs, throughout. M.B. A. /U-16/L Appeal dismissed.