2007 PLP 530 (CLD)

RANA BHAGWANDAS, J.

Short question for consideration in this petition arising out of Sindh High Court, Sukkur Bench order dated 1-3-2005 is whether the petitioner could lawfully challenge the ex parte decree passed by the Banking Court, Sukkur on 29-11-2001 against him and the principal debtor or a subsequent order dated 26-8-2002 passed on his application under section 12(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 instead of an appeal under 22 of the Ordinance, 2001.

2. Precise facts leading to this petition appear to be that respondent National Bank of Pakistan tiled a suit for recovery of Rs,4,06,086 against respondent Sikandar Ali and the petitioner before the Banking Court, Sukkur on the basis of Promissory Note. Letter of hypothecation, finance agreement and Letter of authority. As both the defendants despite service of notice through bailiff, by registered post and publication of summons in two newspapers neither appeared before the Banking Court nor filed any application for leave to defend the suit, the suit was decreed against them with costs and mark-up vide judgment/decree dated 29-11-2001. According to the petitioner he came to know about passing of the decree on 30-11-2001 when he went to the office of the Bank on receipt of summons a day earlier, but instead of challenging it by way of appeal he preferred miscellaneous application under section 12 of the Ordinance, 2001 for setting aside the judgment and decree. His prayer was however,' declined vide Banking Court order dated 26-8-2003. This order being in the nature of final determination of the liability of the petitioner and upholding the ex pane decree passed against him remedy of statutory appeal was available before the High Court but the petitioner chose to file a constitutional petition before it which has been dismissed as being without any merit and substance.

3. The findings of fact and law recorded by the Banking Court as well as the High Court appear to be that the petitioner was duly served with the summons of the suit and that constitutional petition against an ex parte decree as well as rejection of application for setting aside such decree were not tenable at law.

4. We have heard Mr. Ghulam Qadir Jatoi at sufficient length and gone through the impugned judgment and the record. The precise answer posed to the learned counsel would be in negative as in the presence of statutory legal remedy provided by law having not been availed the petitioner cannot be allowed to bypass such course and invoke the extraordinary jurisdiction of the High Court which could only be availed after exhausting all available remedies provided under the law. Since the order passed by the Banking Court was neither void nor without jurisdiction recourse to the constitutional jurisdiction, of the High Court was totally unwarranted and uncalled for which was rightly not exercised in favour of the petitioner.

5. In the peculiar facts and circumstances of the case when the petitioner himself chose a wrong forum knowing fully well the remedy available to him under the law we find no fault with the judgment of the High Court and no ground for the grant of leave.

6. Consequently the petition fails and is hereby dismissed. H.B.T./G-5/SC Petition dismissed.