2015 PLP 52 (CLD)

Through instant petition, petitioner has impugned the order dated 19-12-2011 passed by the Banking Court No.II, at Karachi in Suit No.191 of 2011, whereby, leave to defend application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, filed by the petitioner has been dismissed. The precise objection raised by the learned counsel for the petitioner through instant petition is that leave to defend application filed by the petitioner under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was dismissed by the Banking Court No.II, at Karachi, in a summary manner through a stereo type orders without proper application of mind. Whereas, per learned counsel, neither facts of the case of the petitioner were examined by the learned Judge of Banking Court nor the impugned order contained any valid reasons. In support of his contention, learned counsel for the petitioner has annexed the copes of various orders passed by the same learned Judge of Banking Court No.II, at Karachi on 16-12-2011 and 19-11-2011 in Suit Nos.556 of 2010, 554 of 2010 and 235 of 2011 respectively, to demonstrate that the language and the contents of all the orders passed by the learned Banking Judge are identical, except the name of the parties and date of filing of break up statements in the cases. It has been contended by learned counsel for the petitioner that the impugned order is violative of legal mandate available to the learned Banking Judge, who was under legal obligation to pass an independent, well reasoned and speaking order in accordance with law, after proper application of mind to the fact of each case and by providing an opportunity of being heard. Learned counsel for the petitioner further submits that the disposal of the leave to defend application in a mechanical manner without application of mind, amounts to denying justice to the aggrieved party, as opportunity of being heard in the present case has not been provided to the petitioner, hence, it has been prayed that impugned order may be set aside. It has been further contended that the impugned order of the learned Banking Court, having been passed in violation of principle of natural justice and contrary to the legal mandate can be set aside by this Court by invoking the provisions of Articles 199 and 203 of the Islamic Republic of Pakistan, 1973, whereas, directions can be issued to all the subordinate Courts to adopt a legal course while deciding the cases, particularly to the Banking Court to decide all leave to defend applications by applying independent mind to the facts of each case, so that, injustice may not be done to the parties.

2. Conversely, learned counsel for the respondent initially raised an objection on maintainability of petition and submitted that against an order dismissing leave to defend application by the Banking Court, no appeal or petition is maintainable as held in various judgments of this Court as well as Judgments of Hon'ble Supreme Court of Pakistan reported in the case of (i) Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another [1996 SCMR 1165], (ii) Bolan Bank Ltd. v. Capricorn Enterprise (Pvt.) Ltd. [1998 SCMR 1961], (iii) Doha Bank Limited through Duly Authorized Attorneys v. Javaid Carpets (Pvt.) Ltd. through Managing Director and 6 others [2001 MLD Lahore 1532], (iv) Ms. Afshan Ahmed v. Messrs Habib Bank Limited and another [2002 CLD 137], however, while confronted with the peculiar facts and circumstances of this case and after perusal of the impugned order and other identical stereo type orders passed by the same learned Judge of Banking Court No.II, Karachi, learned counsel for the respondents could not controvert the contention of learned counsel for the petitioner and submits that the impugned order dated 19-12-2011 does not meet the requirements of a valid judicial order, which may be set aside and the matter may be remanded back to the learned Banking Court to decide the leave to defend application of the petitioner afresh after providing complete opportunity of being heard to both the parties.

3. Learned counsel for the petitioner is agreeable to such disposal of the instant petition in the aforesaid manner.

4. From perusal of the impugned order and the orders which have been annexed with instant petition, it is noted that stereotype identical orders have been passed by the same learned Judge of Banking Court, whereby leave to defend applications filed by various parties have been dismissed in a mechanical manner without proper application of mind to the facts of each case.

5. Accordingly, by consent of both the learned counsel for the parties, impugned order dated 19-12-2011 passed by the Banking Court No.II, Karachi on leave to defend application filed under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001, in the case of the petitioner, is hereby set aside. The matter is remanded back to the learned Banking Court No. II, at Karachi with the direction to decide the leave to defend application of the petitioner afresh, after providing complete opportunity of being heard to both the parties and thereafter, to pass a well reasoned speaking order preferably within a period of two months from the date of receipt of this order.

6. We may observe that all the Courts, the Court subordinate to High Courts, Special Courts i.e. Banking Courts, Labour Courts, Customs Courts, Anti-Corruption Courts etc and the Special Tribunals functioning within the territorial jurisdiction of Province, are required to pass well reasoned and speaking orders after providing complete opportunity of being hoard to the litigant parties, strictly in accordance with law. It is not only the mandate of the Constitution and law but it is also the requirement of smooth Administration of justice, equity and fair play. Its compliance substantially reduces unnecessary litigation which may ensue pursuant to sketchy and bald judicial orders. We may observe that all Subordinate Courts including Special Courts and Tribunals functioning within the territorial jurisdiction shall ensure that principle of Natural justice and the legal mandate given under the Statute shall not be violated and the cases may be decided through speaking and well reasoned orders after providing opportunity of being heard to the parties strictly in accordance with law.

7. Petition stands disposed of in the above terms along with listed applications.

8. As per request of learned counsel for the petitioner, who happens to be the President of Karachi Bar Association, office is directed to circulate the copy of this order to all the District Courts, Special Courts and Tribunals functioning within the territorial jurisdiction of Province of Sindh, Subordinate to High Court, for information and compliance. KMZ/B-13/Sindh Petition allowed.