1994 PLP 2150 (CLC)

Abdul Haleem Pirzada, A.‑G., Sindh (on Notice). Syed Iqbal Ahmed for Respondent No.

2. Date of hearing: 8th December, 1993. NASIR ASLAM ZAHID, CJ.‑Respondent 2 (hereinafter referred to as the Bank) filed a suit in 1985 in the Special Court of Sindh (Banking), Karachi, against respondent 3, Iqbal Nanji, Proprietor, M/s. Corpotrade, and the petitioner, Mst. Zubeda Khanum. The case of the Bank was that the respondent 3 had been granted certain credit facilities in 1983 and that petitioner had equitably mortgaged her immovable properties by deposit of title deeds as security for the re‑payment of the said credit facilities. It may be observed here that as the mortgaged properties were situated in PIB Cooperative Housing Society, the said Society was also joined as a pro forma defendant in the suit by the Bank. The petitioner was served with the summons of the suit. She entered appearance through an Advocate. An application was filed for leave to defend the suit, which was granted on furnishing surety. Surety was not furnished by the petitioner. By judgment dated 8‑12‑1990, the Special Court passed a preliminary decree. It may be observed here that the Special Court had granted leave to defend the suit to the petitioner on furnishing surety by order dated 28‑1‑1990, but against the said order no appeal was filed. An application was filed by the petitioner which was considered by the Special Court ‑as a review application for review of the order dated 28‑1‑1990. The said application was dismissed on the ground that review was not maintainable. By the said order dated 18‑3‑1990, the Special Court also considered whether the mortgaged properties could be taken as security, but it came to the conclusion that the suit had been filed in 1985 and the claim of the Bank had increased considerably on account of passage of time (on account of interest, etc.). Against the said order dated 18‑3‑1990, also no appeal was filed. Final decree was passed against the petitioner and the borrower on 23‑12‑1991. Against the final decree, also no appeal was fled. The present Constitutional petition was filed by the petitioner on 16‑3‑1993, challenging the order of the Special Court granting leave to appeal on furnishing surety and the preliminary and final decrees passed against the petitioner. We heard the arguments of the learned counsel for the petitioner and also Mr. Syed Iqbal Ahmed, who appeared for the Bank pursuant to pre admission notice, and on conclusion of the arguments on 2‑12‑1993, the petition was dismissed in limine. Costs of Rs.10,000 was imposed upon the petitioner for payment to respondent‑Bank. Reasons for the order dated 2‑12‑1993 are contained here, Mr. Sheikh Abdul Aziz, learned counsel for the petitioner, had raised the following contentions:‑‑ (a) There was no contractual relationship between the petitioner and the Bank. (b) The petitioner had not furnished any surety and as such the petitioner was not a borrower and, therefore, the Special Court had no jurisdiction. (c) While granting leave, the condition for furnishing surety should not have been imposed or, in any case, the properties which were alleged to have been mortgaged should have been accepted as surety. (d) As the original tribunal, that is, the Special Court, had no jurisdiction, even if the remedy of appeal was not availed of, the present Constitutional petition was maintainable. We found no merit in this petition. In so far as the first two contentions are concerned that the petitioner was not a surety and there was no contractual relationship between the petitioner and the Bank and, as such, the petitioner was not a borrower and the Special Court had no jurisdiction, it may be observed that the petitioner had entered appearance through an Advocate, an application for leave to defend had been filed on which leave was granted on condition of furnishing surety. If the petitioner was aggrieved, the said order should have been challenged in appropriate proceedings. Admittedly this was not done. On a question from us, learned counsel admitted that the documents of the title of the properties of the petitioner were lying with the Bank but no answer could be given as to how the said documents reached the Bank. The case of the Bank was that the documents had been deposited with the Bank as security for re‑payment of the said outstanding against the credit facilities granted to the borrower. Arguments had been raised that generally there is always a document evidencing the deposit of title deeds when title A deeds are deposited with the Bank or other creditor as security, for loan granted to any other party but then learned counsel conceded that the law did not require that for creation of an equitable mortgage by way of deposit of title deeds, it is essential that the said deposit should be accompanied by some I documents evidencing the creation of an equitable mortgage. In any case, as observed, if the petitioner was aggrieved by any order passed by the Special Court the provision of appeal was available, which was admittedly not availed of by the petitioner and the petitioner is now estopped from challenging the said orders including the preliminary and final decrees in the present Constitutional petition, in the facts and circumstances of the case. Vires of the order of the Special Court granting leave subject to condition of surety can also not be challenged in the present Constitutional petition. If the petitioner, who was represented by a counsel, was aggrieved by the said order of conditional leave, the same should have been challenged in appropriate proceedings which admittedly was not done and after passage of about over three years, the present Constitutional petition has been filed. Final argument was that, as the original tribunal had no jurisdiction, he fact that no appeal had been filed, did not deprive the petitioner from approaching this Court under Article 199 of the Constitution. In the facts and circumstances of this case, we are of the view that this petition is not maintainable and was liable to be dismissed. As observed, the petitioner had several opportunities of challenging the orders as well as the preliminary and final decrees passed against her but the remedies were not availed of and after two to three years of the passing of the impugned orders, without availing the remedies of appeal and allowing the appeals to become time‑barred, the petitioner cannot be allowed to avail the remedies under Article. 199 of the Constitution. For the aforesaid reasons, finding no merit in this Constitutional petition, it was dismissed by our order dated 2‑12‑1993 and in the circumstances of the case, we imposed the costs of Rs.10,

000. A.A./Z‑227/K Petition dismissed,