1984 PLP 710 (MLD)

13. Pending cases and appeals--Notwithstanding anything contained in section 12-- (a) any case pending at the commencement of this Ordinance before a High Court in the exercise of its original jurisdiction shall continue to be heard, and shall be decided, by the High Court; (b) any appeal pending before the Supreme Court or High Court at the commencement of this Ordinance from an order which disposes of the entire case shall continue to be heard, and shall be decided by the Supreme Court or, era the case may be, the High Court; (c) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an interlocutory order which does not dispose of the entire case shall stand transferred to the Special Court; and (d) any appeal on any of the grounds specified in subsection (2) of section 12 which is from an order which disposes of the entire case and which may be pending before a District Judge at the commencement of this Ordinance shall stand transferred to the High Court."

6. By virtue of the original provisions of section 6, reproduced above, the Special Court was conferred pecuniary jurisdiction in the banks recovery of loans cases in which the outstanding amount of loan exceeded one lac rupees, subject to certain limitations provided under clauses (b) and (c) of subsection (2) of section 6 of the Ordinance reproduced above. Thus, the jurisdiction of the Civil Courts of general jurisdiction remained in tact for adjudication of claims for sums not exceeding one lac rupees. Further, the cases pending in the High Court on its original civil jurisdiction remained unaffected as laid down tinder section 13 of the Ordinance. But jurisdiction of the Special Court in the execution of decrees passed by other Courts has been a subject for debate. Subsequent changes in the law have trade the question more debatable. The Ordinance was amended by the Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 (herein after referred to as the Amending Ordinance) promulgated on 30th January, 1983, whereby constitution of the Special Court and its pecuniary jurisdiction suffered radical change. Definition of Special Court contained in clause (f) of section of the Ordinance as "a Special Court established under section 5" was substituted as under:-- "(f) "Special Court" means-- (1) in respect of a case in which the outstanding amount of the loan does not exceed one million rupees or the trial of offences punishable under this Ordinance, a person who is or has been a District Judge or an 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; and (ii) in respect of any other case, the High Court in the exercise of its original civil jurisdiction;" Clause (a) of subsection (2) of section 6 of the Ordinance has been deleted. Section 6 of the Ordinance relating to powers of Special Court reproduced above was suitably amended. Provision was also made for transfer of the cases pending in the Special Court. By virtue of the amendments, particularly the amended definition of the "Special Court", the pecuniary jurisdiction of the Special Court, other than the High Court in the exercise of its original civil jurisdiction, extended up to one million rupees. For convenience sake, reference to the Special Court in this order will mean Special Court, other than the High Court, constituted under the Ordinance as amended. The significant change to be noticed in the pecuniary jurisdiction of the Special Court is that, under the original ordinance, its pecuniary jurisdiction was beyond one Lac rupees without upper limit whereas by way of amendment in the Ordinance by the Amending Ordinance, its pecuniary jurisdiction has been limited to one million rupees and the lower limit has been removed, which means the Special Court established under the Ordinance as amended, has pecuniary jurisdiction upto one million rupees.

7. The question of jurisdiction in the execution applications under consideration has to be examined in the light of the relevant provisions obtaining at the time they were filed. As indicated above, the Special Court at Karachi was established under the Banking Companies (Recovery of Loans) Ordinance, 1979 promulgated on 27th March, 1979 and enforced with effect from 1st April, 1979. It came into being from 4th May, 1979. It did not have pecuniary jurisdiction upto the limits of one lac rupees till 29th January, 1983 i.e. the day immediately preceding the day on which the Ordinance was amended. Thus, during the intervening period i.e. from 1st April, 1979, or may be 4th May, 1979 to 29th January, 1983, the execution applications for the recovery of the outstanding loans not exceeding a lac of rupees did not lie to the Special Court but they lay only in the High Court in the cases decreed by the High Court. It is only after the promulgation of the Amending Ordinance on 30th January, 1983, when the pecuniary jurisdiction oft the Special Court was revised and reduced to one million rupees as the upper limit and the lower limit at one lac rupees provided under the Ordinance was done away with, that the execution applications for the recovery of outstanding loans upto one million rupees could be filed ins the Special Court. The provisions regarding transfer of pending execution applications contained in subsection (4) of section 6 of the Ordinance were modified with retrospective effect by addition of a proviso thereto by the Amending Ordinance (vide section 5) only in respect of those banking companies which could seek remedy otherwise under the law they had been established as amended from time to time. Accordingly the Special Court can execute the decrees which lay within its pecuniary jurisdiction at the relevant time.

8. The question of jurisdiction in the Execution Applications under consideration is to be resolved in the context of the provisions of the Ordinance as amended. All of them were filed in this Court during the period November, 1979 to February, 1981, when the Special Court was the Court established under section 5 of the unamended Ordinance and its pecuniary jurisdiction was above a lac of rupees. The sum to be recovered in each of the execution application was less than a lac of rupees except Execution Application No. 41 /80 in which the decree to be executed was in the sum of Rs.97,100 but by addition of interest, the execution application has been filed for recovery of a sum of Rs.1,36,

222. Evidently, these execution applications were filed at the time the Special Court did not have pecuniary jurisdiction to the extent of the sums sought to be recovered there under for the reason that they were for recovery of the sums which were less than the minimum limit of its pecuniary jurisdiction at a lac of rupees. Their pecuniary limit fell within the pecuniary jurisdiction of the Special Court on the promulgation of the Amending Ordinance on 30th January, 1983. They were actually pending in the High Court when the jurisdiction of the Special Court was revised. As such, they were not liable to be returned for presenting them in the Special Court. They were also not liable to be transferred to the Special Court under subsection (4) of section 6 of the Ordinance referred to above as they had been filed much after the "commencing day" envisaged under the Ordinance. The Amending Ordinance did provide under section 8 thereof, for transfer of pending cases but it did not provide for transfer of pending execution proceedings. Section 8 of the Amending Ordinance reads as under:-- "

8. TRANSFER OF PENDING CASES-- (1) Any case which, immediately before the commencement of this Ordinance, was pending before a Special Court established under section 5 of the said Ordinance shall, on such commencement, stand transferred to the Special Court which have had jurisdiction in the case had it been instituted after such commencement. (2) In respect of a case transferred to a Special Court by virtue of subsection (1), the Special Court shall not, by reason of the said transfer, be bound to re-call and re-hear any witness who has given evidence before the transfer and may act on the evidence already recorded by or produced before the Court from which the case is so transferred." No provision of like nature is made in respect of execution applications pending on the day of Amending Ordinance was promulgated on 30th January, 1983 and they remained pending wherever they were. In such situation, the execution applications this order relates to, which were filed in this Court within its jurisdiction and were pending at the time of promulgation of the Amending Ordinance, to be disposed of in this Court It may, however, be clarified that Execution Application No. 41/80 has been filed for the recovery of Rs.1,36,222 and the execution application for recovery of outstanding loan exceeding a lac of rupees lay in the Special Court at the time it was filed. But Mr.G.H. Malik, Advocate has submitted that the execution application has been filed for the recovery of decretal amount of Rs.97,100 which is obviously less than a lac of rupees, and the amount has exceeded the border line of pecuniary jurisdiction of the Special Court at a lac of rupees by addition of interest over the decretal amount and costs of the suit. His contention is not without substance and is accepted.

9. The question of jurisdiction in execution applications consequent upon promulgation of tile Ordinance but before that of the Amending Ordinance was considered by my learned brother Nasir Aslam Zahid, J. in Execution Application No. 109 of 1981 in Suit No. 1097 of 1978 (National Bank of Pakistan v. Bawany Industries Ltd. P L U 1983 Kar.

300. It was held that the execution application filed, after the promulga tion of the Ordinance, in a suit for recovery of banking loan exceeding the sum of one lac lay to the Special Court and tile execution application for recovery of an outstanding loan exceeding a lac of rupees having been filed after the promulgation of the Ordinance was returned for its presentation to the competent Court viz. the Special Court for Sind. Observation was, of course, made in the order that had the execution application been pending in the High Court when the Ordinance was promulgated, it could have been heard and disposed of by the High court by virtue of section 13(a) of the Ordinance which has been reproduced above. This order was passed on 19th December, 1982, i.e. before the promulgation of the Amending Ordinance.

10. Similar question of the filing of execution applications in the cases within the cognizance of the Special Court was considered in this Court by my learned brother Saleem Akhtar, J. in Execution Application No. 65/1979 in Suit No. 628 of 1978 Messrs United Bank Ltd. v. Mst. Rehana Raza P L D 1983 Kar.

467. The order was passed on 13th March, 1983 (i.e. after the promulgation of the Amending Ordinance). On an office reference for determination of the question: whether an execution application filed after 1-4-1979 (the day on which the Ordinance came into force) in respect of a decree passed by the High Court relating to the subject-matter falling within the jurisdiction of the Special Court be returned for presentation to the proper Court. The question was examined threadbare and the office reference was disposed of by the order, dated 13th March, 1983 already reproduced above in the opening paragraph of this order. It would suffice to mention here that the answer to the office reference was that the pending execution applications filed before 3rd May, 1979 in respect of the matters to which the jurisdiction of Special Court extends shall stand transferred to the Special Court while those filed after 3rd May, 1979 except those arising from claims exceeding one million rupees shall be returned for presentation to proper Court. The demarcating line at 3rd/4th May, 1979, seems to have been drawn on the basis of establishment of first Special Court for Sind with effect from 4th May, 1979, although the Ordinance: was promulgated on 27th March, 1979 and its commencement was notified from 1st April, 1979. It would be worthwhile to reproduce the following extract from the order relating to the scope of sections 6(4) and 13-A of the Ordinance, as amended, as regards the jurisdiction of the Special Court;- "Section 6(4) of the Ordinance confers vest powers on the Special Court and simultaneously excludes the jurisdiction of other Courts in matters to which the jurisdiction of the Special Court extends. The words 'a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends' confer wide powers extending to all and every proceedings which may relate to or arise out of the matters which fall within the jurisdiction of a Special Court. The object of the legislature seems to vest a Special Court with all powers relating to any proceedings in matters to which its jurisdiction extends. This provision further clarifies and widens the extent of jurisdiction by providing that the jurisdiction conferred on a Special Court shall include the determination of the existence or non-existence of loan, execution of a decree passed by a Special Court and the proceedings for execution of the decree passed by any Court in respect of matters within the jurisdiction of a Special Court which is pending. Thus a Special Court has tile power not only to execute the decree passed by it but even to proceed to determine and decide the pending execution proceedings in respect of matters in which decree has been passed by any Court which fall within its ambit. As the pending execution proceedings can be tried by Special Court by necessary implication the Special Court will have the jurisdiction to execute the decree passed by any Court in respect of subject-matter falling within the jurisdiction of a Special Court. In view of such wide and clear jurisdiction conferred on a Special Court it cannot be successfully contended that the decree passed by the High Court in respect of matters to which the jurisdiction of the Special Court extends can be executed by the High Court. The question now arises is whether in view of section 13(a) the High Court can proceed with the pending execution application relating to the matter to which the jurisdiction of a Special Court extends. In this regard reference is made to section 6(4) which provides that such execution application shall stand trans ferred to the Special Court. Attempt has been made to argue that there is a conflict between section 6(4) and section 13(a) which provides that the cases pending before the High Court in exercise of its original jurisdiction shall be tried by the High Court. Section 6(4) contemplates transfer of pending execution applications to a Special Court whereas section 13(a) provides that the cases pending before the High Court in exercise of' its original jurisdiction shall be tried by the High Court. It is well-settled rule in interpretation that a harmonius construction has to be placed on different provisions of the same enactment. Therefore, the pending execution applications, by operation of law stand transferred to the Special Court but the suits and other proceedings which are pending before the High Court in exercise of its original jurisdiction shall continue to be heard and decided by the High Court."

11. In the same order, his Lordship Mr. Justice Saleem Akhtar made following observation on the view taken by his Lordship Mr. Justice Nasir Aslam Zahid in Execution Application No 109/81 already referred to above. "In Execution Application No. 109/81 the question for consideration was whether an execution application for executing a decree passed by a High Court in respect of matter within the jurisdiction of the Special Court can be filed before the Special Court and tile answer was in tile affirmative. Observation was also made to the effect that 'if an execution application were pending in the High Court when the 1979 Ordinance was enacted, such execution application would continue to be heard and then decided by the High Court by virtue of section 13(a) of the 1979 Ordinance'. This observation seems to have been passingly made as this question was neither under consideration not it was argued."

12. Mr. G.H. Malik, the learned counsel fur the Decree-Holders has candidly argued that there is no exception to the view taken by his lordship Mr. Justice Saleem Akhtar that the pending execution applica tions filed before 3rd May, 1979 in respect of matters to which the jurisdiction of Special Court extends shall stand transferred to the Special Court. I am also in respectful agreement with the view of his Lordship on the basis of the provisions of subsection (4) of section 6 of the Ordinance as amended. But Mr. Malik has contended that the execution Applications were filed in the High Court after 1st April. 1979 when they lay within the pecuniary jurisdiction of the High Court and did not fall within the pecuniary jurisdiction of the Special Court and are not liable to be returned for presentation in the Special Court, nor are they liable to be returned to that Court. His argument carries greater force. The expression "and all proceedings, including proceedings following the filing of an arbitration award and proceedings for execution of a decree within the jurisdiction of a Special Court by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to Special Court" in subsection (4) of section 6 of the Ordinance reproduced above, leaves no doubt to adopt the view that the execution application falling within the pecuniary jurisdiction of the Special Court which were pending in the High Court immediately before the commencing day (i.e. the day on which the Ordinance came into force viz. 1-4-1979 as defined under section 2 of the Ordinance) stood transferred to the Special Court. At tile relevant time, pecuniary jurisdiction of the Special Court extended to the claims exceeding one lac. But the pecuniary jurisdiction of the Special Court was radically revised and was restricted to one million rupees without lower limit by the promulgation of the Amending Ordinance on 30th January, 1983. By variation in tile pecuniary jurisdiction of the Special Court, different situations obtained at different times. Keeping in view those situations, the execution applications which could be visualised may be categorized as under:-- (1) Execution applications for recovery of outstanding Banking Loans not exceeding a lac of rupees pending on 1-4-1979. (2) Execution applications for recovery of such loans not exceeding a lac of rupees filed in the High Court during the period from 1-4-1979 to 29-1-1983 and pending oil 30-1-1983.

3. Execution applications for recovery of such loans not exceeding a lac of rupees filed in the High Court on or after 30-1-1983. (4) Execution applications for recovery of loans exceeding a lac of rupees pending in the High Court on the day of commencement of the Ordinance vie: 1-4-1979. (5) Execution applications for tile recovery of such luaus exceeding a lac of rupees filed in the High Court during the period from 1-4-1979 to 29-1-1983 and pending on 30-1-1983. (6) Execution applications for the recovery of such loans upto a million rupees filed in the High Court on or after 30-1-1983. (7) Execution applications for the recovery of such loans exceeding a million rupees filed in the High Court on or after 30-1-1983. The Execution applications this order pertains to fall in the category II. They were filed at the time when only the High Court had the jurisdiction to have entertained them and they did not lie within the pecuniary jurisdiction of the Special Court at the relevant time. As such, they are not liable to be returned for presentation in the Special Court. As regards their transfer to the Special Court, they do not fat within the provisions of subsection (4) of the section 6 of the Ordinance as they were filed after the "Commencing day" as defined in tit Ordinance and there is no provision for the transfer to the Special Court of the decrees filed after the commencing day. Accordingly, all the applications may be dealt with in this Court. M . Y . H . Order accordingly.