1990 PLP 1375 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.

This petition for leave to appeal is directed against order dated 30th October, 1986, by a Division Bench of the Sindh High Court, whereby the appeal tiled by the petitioners against an order of a learned Single Judge in the proceedings of a pending suit was dismissed as incompetent in view of the proviso to section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979. The United Bank Limited, respondent herein has riled a Suit No. 570 of 1984, against the petitioners for recovery of Rs. 10,226,111.42, under the Banking Companies (Recovery of Loans) Ordinance, 1.979 (hereinafter referred to as the Ordinance). On being served with summons of the suit as defendants, the petitioners applied under Order XXXVII rule 3 C.P.C. for grant of unconditional leave to defend the suit on various factual as well as legal grounds. Their application was contested by the respondent and finally the learned Single Judge of the Sindh High Court before whom the suit was pending on the original side by order dated 29th June, 1986, granted leave to the petitioners but subject to the condition that they shall furnish security to the extent of Rs. 5,000,

000. The petitioners being aggrieved by the aforesaid order filed an appeal in the High Court which was dismissed by the Division Bench summarily, by the impugned order as incompetent on the preliminary objection raised on behalf of the respondent that the impugned order in the appeal was an interlocutory order against which no appeal lay under section 12 of the Ordinance. Mr. J.H. Rahmatullah, learned counsel appearing in support of the petition has challenged the view taken by the High Court and has contended that the appeal riled by the petitioners, against the order refusing to grant unconditional leave was appealable. He argued that a suit involving a loan exceeding one million rupees, as in the present case, is entertainable under the Ordinance by virtue of section 2(f), by the High Court in exercise of the original civil jurisdiction and, therefore, even an interlocutory order passed by a Single Judge, in exercise of such jurisdiction, in a suit under the Ordinance, would be appealable by virtue of section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980. In this connection learned counsel explained that the Ordinance as originally enacted envisaged the establishment of Special Courts created under the Ordinance. But by the amending Ordinance No. 11 of 1983, section 5 was deleted and jurisdiction was to be conferred, inter alia in respect of civil suits in which the outstanding amount of loan did not exceed one million rupees on a person who is or has been a District Judge or an Additional District Judge, and in respect of any other case, the High Court in the exercise of original civil jurisdiction was to adjudicate such matter as a Special Court. In the premises it was forcefully contended by the learned counsel that the general right to appeal granted in respect of interlocutory orders of the Single Judge passed in exercise of original jurisdiction will be available,' in absence of the right of appeal conferred by the special statute. Now section 12(1) of the Ordinance reads as under:

"Section 12(1)--Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed:-- Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. (2) ................................................................................................................................ (3) ................................................................................................................................ (4) ................................................................................................................................ (5) ................................................................................................................................ On the language of the proviso, learned counsel submitted that the words "entire case" do not necessarily dcnote the disposal of the entire suit. According to his submission the word "case" is a term of wider import and has to be construed in the same sense as the Courts have interpreted it in the context of section 115 of the C.P.C. In that sense the order on an application for leave to defend would fall within the purview of the words "disposed of the entire case", and, therefore, an appeal would be competent. After hearing the learned counsel we feel that the arguments advanced in support of this petition raise substantial legal questions of general importance as to the interpretation of section 12 of the Ordinance and the jurisdiction of the High Court thereunder. We, therefore, grant leave to appeal. Security Rs. 2,

500. Stay granted by this Court on 19th March, 1987 to continue. The appeal shall be prepared on the same record but it will be open to, the parties to file additional documents if any. H.B.T./P-149/S Leave granted.