P L D 1984 Lahore 417 (PLP)

‑‑‑ Contention that parties bad entered into compromise and decision of Court was result of said compromise‑No written compromise deed available on record nor any statement from other party recorded showing that said party bad accepted that compromise‑Court having no jurisdiction to try and adjudicate upon case‑Compromise entered by parties, if any, before such Court, held, had no force in circum stances.‑[Jurisdiction]. Sh. Jamshed Ahmad for Appellant. Ch. Ghulam Mujtaba for Respondent. Date of hearing : 25th March, 1984.. GHAZANFAR ALI CONDAL, J.--‑This is a first appeal against order dated 4.12‑1983 of Additional District Judge, Gujranwala, whereby he dismissed the application for setting aside ex parte decree for recovery of Rs. 30,307.21 with interest by sale of mortgaged property, passed on 29‑6‑1982 by Civil Judge, Gujranwala, but modified the decree and remitted the secured as well as future interest and permitted the judgment‑debtor to pay the decretal amount in 12 instalments.

2. The facts of the case are that National Bank of Pakistan, Zonal Office, Satellite Town, Gujranwala filed a suit against respondent Taj Muhammad for recovery of a sum of Rs. 30,307.21 by sale of mortgaged property. This suit was decreed on 29‑6‑1982 by the Civil Judge, Gujranwala, ex parte with costs and with future interest. On 3‑7‑1982, respondent Taj Muhammad filed an application for setting aside ex parte decree. This application was dismissed on 18‑11‑1982 by Ch. Nabi Ahmad, Civil Judge 1st Class, Gujranwala. On 18‑11‑1982 respondent Taj Muhammad filed an appeal against the said order of the Civil Judge. On 16‑2‑19a3, appeal was accepted by the learned District Judge, Gujranwala and the case sent back to the trial Judge directing him to frame an issue and decide the said application afresh after giving opportunity to the parties to produce evidence on the said issue. However, the trial Judge referred the case to the District Judge, Gujranwala for disposal under the impression that the District Court, Guiranwala had then the jurisdiction to hear the said case on account of amendment made in Ordinance XIX of 1979 by Ordinance 11 of 1983. The District Judge, Gujranwala on his turn, sent the case alongwith the application for setting aside ex parte decree, dated 29‑6‑1982 to Sh. Mumtaz Ali, Additional District Judge for trial and disposal. The said Additional District Judge by his impugned order, dated 4‑12‑1983, dismissed the application for setting aside ex pane decree and in view of the statement of respondent recorded by him on the said date, modified the decree, permitted the respondent to make payment in 12 instalments, and completely remitted the interest from the date of institution of the suit till the date of the decree, and from the date of decree till the date of realization.

3. The main point urged by the learned counsel for the appellant is that the Additional District fudge had no jurisdiction to decide the case in question and as such his order is a nullity in the eye of law.

4. We have considered the point raised and heard the learned counsel for the parties on the same and have come to the conclusion that the plea of the learned counsel for the appellant must prevail. Originally, loan advanced by the bank could be recovered by resort to a suit in a civil Court of general jurisdiction. On 27th March, 1979, however, Banking Companies (Recovery of Loans) Ordinance, 1979 (Ordinance XIX of 1979) was promulgated, section 5 whereof provided for establishment of special Courts by a notification in the official Gazette by the Federal Government for trial of such cases. According to section 6(2) (a) of the said statute, such a special Court had the jurisdiction to try cases for recovery of bank loans for a sum of more than one lac of rupees and according to section 6(4) of the said Ordinance, the jurisdiction of civil Court in such cases was barred. According to this statute, therefore, all suits for recovery of bank loans for a sum of one lac of rupees and sums less than one lac of rupees could be entertained by civil Courts of necessary pecuniary jurisdiction and this suit for recovery of Rs. 30,307.21 could be and had rightly been decided by the civil Court on 29‑6‑1982. The said Ordinance was, however, amended by means of Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 (Ordinance 11 of 1983) which was promulgated on 30th January, 1983. According to it, section 5 and section 6(2) (a) were omitted and section 2(f) giving the meaning of a special Court was substituted by a fresh provision which provided that a special Court means in respect of a case in which outstanding amount of loan does not exceed one million (ten lac) rupees, a person who is or has been a District Judge or Additional District Judge and is appointed by the Federal Government by notification in the official Gazette to be a special Court to exercise jurisdiction within such territorial limits as may be specified in the notification and in the absence of such appointment, the District Court. Therefore, when the District Judge, Gujranwala bad by his order, dated 16‑2‑1983 accepted the appeal against ex parte decree and had sent the case to the trial Court, the forum for the remedy of recovery of bank loans up to one lac of rupees (including disputed sum of Rs. 30,307.21) had been changed.

5. The case in hand was, however, a pending case and it is to be examined whether the said amendment in law was retrospective in nature and affected the said pending case or not. Normally procedural amendments including those purporting to transfer jurisdiction over certain causes of action operate retroactively but when the new forum makes the remedy provided inconvenient, the Courts are not inclined to treat the procedural amendment to be retrospective in effect. Reference in this connection is invited to Adnan Afzal v. Captain Sher Afzal (P L D1969 S C 187), wherein it was observed by the Supreme Court that if giving of retroactive operation to procedural provisions causes inconvenience, then Courts will not even in the case of a procedural statute favour an interpretation giving retrospective effect to the Statute. Now turning to the case in hand, according to position as available at the time of promulgation of Banking Companies (Recovery of Loans) Ordinance, 1979, suit for recovery of bank loans for sums of one lac of rupees or less than that were entertainable by a civil Court of competent pecuniary jurisdiction and the appeals against their decrees lay to District Judge or High Court depending upon the jurisdictional value of the suit. After the amendment by Ordinance [I of 1983, all suits for recovery of bank loans including those for loans of one lac or less than one lac of rupees can now be heard either by District Judge or Additional District Judge notified in the official Gazette as a special Court or in the absence of any such notification, by the District Court. If the said amendment which has transferred jurisdiction over suits for recovery of bank loans for a sum of a lac or less than one lac of rupees is considered to be retrospective in effect, then all cases regarding recovery of loans up to one lac of Rupees would have to be taken away from the civil Courts and sent either to Special Court so notified or in the absence of any notification, to the District court of each District. If that happens the Special Court or District Courts would get flooded with spate of cases and already over‑worked as they are, they would not be able to effect speedy disposal of the said cases which would result in inconvenience and frustration to litigant public. In our opinion, therefore, if retroactive operation is given to the new forum and to the new remedy) for recovery of old loans in respect of sums of one lac of rupees or less than one lac of rupees, it would cause great hardship to parties and witnesses of the said suits. Therefore, in view * of the principle enumerated by the learned Judges of the Supreme Court in Adnan Afzal's case (supra), we are not inclined to give retrospective effect to the amendment made by virtue of Ordinance II of 1983 in the forum for recovery of bank loans of rupees one lac or less than that sum and hold that the said amendment would be considered prospective which would not affect pending cases. It is clear from the above that Civil Judge to whom the case had been remanded by the learned District Judge for trial of application under' Order IX, rule 13, C. P. C. was the competent Court to decide the matter and he should nut have sent the case to the District Judge nor should the District Judge have sent the case to the Additional District Judge for disposal and the said learned Civil Judge should have himself proceeded to dispose of the matter. The Additional District Judge bad no jurisdiction to decide this case as a trial Court. We accordingly hold that the impugned order of Additional District Judge is without jurisdiction and is nullity in the eye of law.

8. The only point submitted by the learned counsel for the respondent in this case is that there was a compromise between the parties and the decision was the result of the said compromise. There is, however, no written compromise deed on the record, nor any statement of appellant bank appears to have been recorded to show that the appellant‑bank had accepted any such compromise. Over and above that, no compromise could be recorded by the Additional District Judge, Gujranwala, who had absolutely no jurisdiction to try and adjudicate upon the said case. The point raised by the learned counsel for the respondent has accordingly no force and is, therefore, repelled.

9. For the foregoing reasons, we accept this appeal without any order as to costs, set aside the impugned order, dated 4‑12‑1983 of Additional District Judge, Gujranwala, and remand the case to a civil Court of competent pecuniary jurisdiction to be nominated by the District Judge, Gujranwala, who in terms of order, dated 16‑2‑1983, passed by the District Judge, Gujranwala, shall frame necessary issue/issues in the application for setting aside ex parte decree and decide the matter afresh after giving full opportunity to the parties to produce evidence in the case. M. Z. M. Case remanded.