2003 PLP 1822 (CLD)

(1) The learned Single Judge has erred in consolidating the two proceedings at belated stage after recording the evidence of the appellants side. (2) The case of action in the two proceedings are different. (3) The two consolidated proceedings are being tried under two different special enactments i.e. the Ordinance, 2001 and the Ordinance, 1961. (4) The provisions of section 151, C.P.C. are not applicable to the proceedings. Mr.A.I.Chundrigar, learned counsel for the respondents has challenged the very competency of the appeal. Therefore, we intend to dispose of the point of maintainability first. The competency of the appeal has been challenged by Mr. A.I. Chundrigar, learned counsel for the respondent on the ground based on subsection (6) of section 22 of the Ordinance, which provides that no appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section

19. It would be advantageous to reproduce the relevant provisions of section 22 pertaining to the appeal:‑ "

22. Appeal.‑‑‑(1) Subject to subsection (2) any person aggrieved by any judgment, decree, sentence or final order may prefer an appeal to the High Court: (2) ‑‑‑‑‑‑‑‑‑‑‑‑

(3) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑-- (4) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑-- (5) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑-- (6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of secti6n 15 or subsection (7) of section 19." It has been contended by Mr. A.I. Chundrigar, that the impugned order does not fall within the purview of subsection (11) of section 15 nor of subsection (7) of section 19, therefore, subsection (6) of section 22 of the Ordinance clearly bars an appeal against the interlocutory order which does not dispose of the entire case. Learned counsel has therefore, questioned the maintainability of the appeal as it has been filed against an interlocutory order, whereby the two proceedings (i) suit under Banking jurisdiction and (ii) judicial miscellaneous under the provisions of the Ordinance, 1961 have been consolidated for the purpose of trial. Mr. A.I. Chundrigar to support his contentions has referred two judgments from the apex Court (i) Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar PLD 1981 SC 359; (ii) Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961. In former case, the apex Court after examining the provisions of late Banking Companies (Recovery of Loans) Ordinance, 1979, concluded: "It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decisions of the Special Court should be open to appeal before the High Court. This is evident from subsection (1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court." In the later case, the same view was reaffirmed after examining the provisions of clause (5) of section 21 of the repealed Banking Companies (Recovery of Loans) Ordinance, 1984 in the following terms:‑‑ "Under section 21 of clause (5), no appeal, review or revision shall lie against any interlocutory order of the Banking Court other than an order passed under subsection (6) of section

18. The order impugned in the present petition does not fall within the purview of an order passed under subsection (6) of section

18. Therefore, section 21 clearly bars an appeal against an interlocutory order which does not dispose of the whole case." The provisions of subsection (6) of section 22 of the Ordinance referred to above is analogous to the provisions of subsection (5) of section 21 of the repealed Banking Companies (Recovery of Loans) Ordinance, 1984 which came for interpretation in Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109, the apex Court after examining the provisions of the repealed. Ordinance, illustrated the orders which disposes of the entire case, such orders are:‑‑ (a) an order under Order 7, rule 11, C.P.C.; (b) an order pronouncing judgment under Order 8, rule 10, C.P.C. when a party from whom written statement is required failed to present the same within the time fixed by the Court; (c) pronouncement of judgment under Order 10, rule 11, C.P.C. on failure of a party to appear in person in the Court without lawful excuse when directed by Court to do so; (d) dismissal of the suit for want of prosecution; (e) striking out the defence of the defendant under Order, 11, rule 21, C.P.C. for non‑compliance with the orders of the Court for appearance; (f) pronouncement of judgment under Order 16, rule 20 as consequence of refusal of a party to give evidence when called by Court. The interlocutory order was also defined that an order which is incidental to or a step in aid of the final decision of the suit. The orders falling under such category were also illustrated as follows:‑‑ (i) an order under Order I, rule 10, C.P.C., impleading or refusing to implead a party as plaintiff or defendant as the case may be; (ii) an order allowing or refusing to allow an application for amendment of the pleadings under Order VI, rule 17, C.P.C.; (iii) an order under Order 26, rule 9, C.P.C. regarding issuing or refusing to issue a commission. The second category of order was found to be hit by proviso and is not appealable. It was further clarified that the word `case' has been used in the proviso in the sense of a suit and not to convey the meaning of term 'case' as used in section 115, C.P.C. Mr. Khawaja Shamsul Islam has vehemently contended that the learned Single Judge has traveled beyond his jurisdiction by amalgamating the two proceedings by resorting to the provisions of section 151, C.P.C. which cannot be resorted to and in support of such contention, he referred the case of Industrial Development Bank of Pakistan v. National Engineering Works and others 1983 MLD 1344 to the effect that where there are express provisions of law the provisions of inherent power under section 151 cannot be enforced or applied. There is no cavil to the proposition. It is well‑settled proposition of law that, there is no express provision for consolidation of the proceedings except under the provisions of Order XLV, rule 4, C.P.C., for a specific purpose of pecuniary valuation and not for any other purpose, therefore, the Court has inherent power to consolidate the proceedings, provided other conditions are available. He also tried to build up his arguments in favour of maintainability of the appeal on the basis of view expressed in Khairpur Textile Mills Ltd. v. National Bank of Pakistan 2003 CLD 326, wherein the provision of section 12(2) was found to be applicable to such proceedings. Application of the case of Khairpur Textile to the present case is inapt. A Civil Court or Tribunal, in absence of express provision in the Code is deemed to possess inherent power in its very constitution, which are necessary to do the right and undo a wrong in the course of the administration of g justice. No doubt, the provisions of Code of Civil Procedure have been made applicable only for the matters in respect to which the procedure has not been provided for in the Ordinance. The Court has inherent power to determine, how its proceedings should be conducted. If a reference is required, the case of Naresh Mohan Thakur and others v. Brij Mohan Misra and others AIR 1933 PC 43 can be referred. The contention of Mr. Khawaja Shamsul Islam that the leaned Single Judge has exceeded the jurisdiction by amalgamating the two proceedings has no force, as already pointed out that in absence of express provision, the Court has inherent power ex debito justitiae to consolidate the proceedings. The jurisdiction conferred on the High Court under the Ordinance is Banking jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a `Banking Court' as defined in the Ordinance. It is a fundamental rule, that where an enactment creates anew jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made irk exercise of that jurisdiction must seek only such remedy and not others. The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the Legislature. By virtue of subsection (4) of section 7 in all matters to which under the Ordinance, the jurisdiction of the Banking Court extends, no Court other than the Special Court can have jurisdiction to deal therewith Furthermore, section 27 attaches finality to the orders and categorically lays down that subject to provision for appeal under section 22, no Court or other authority shall revise, review or permit to be called in question any proceeding, judgment, decree, sentence or order of Banking Court or legality or propriety of anything done or intended to be done by the Banking Court, save the correction of any clerical or typographical mistakes in any judgment, decree and sentence passed by it. Evidently, the Legislature in its anxiety to protect the orders of Banking Court, has gone to the extent of ordaining that no Authority other than the appellate forum specified in section 22, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions is that judgment and orders passed by a Banking Court cannot be assailed before any forum except in accordance with the provisions of section

22. Mr. A. I. Chundrigar further maintained that no doubt this Court has wide powers to treat an appeal as petition under Article 199 and petition can be converted into appeal subject to limitation and jurisdiction. But he contended that this appeal cannot be converted into Constitution petition in view of the dictum of the apex Court in Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165, that the statute excluding a right of appeal from the interim order cannot be bypassed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders. The object of enacting the Ordinance is to provide speedy measures for recovery of outstanding loans of the Banking Institutions as their recovery suits remained pending in the Civil Courts for years together. If the orders in the nature of interlocutory orders are brought under challenge before the High Court, the object for which the enactment was made would be frustrated. The appellate power conferred on the High Court is only to the extent of entertaining appeal against the final order and judgment of the Banking Court. For these reasons, we are of the view that the order passed by learned Single Judge is an interlocutory order which does not decide the entire case, therefore, is not subject to the appeal in view of the bar contained in subsection (6) of section 22 of the Ordinance. Before reverting to the merit of the appeal, it would be proper to capitulate the scope, purpose and effect of the consolidation of analogous proceedings. In administering justice as prescribed by Code, by passage of time, the Courts have experienced the following shortcomings in, the Code:‑‑ (i) There will always be cases and circumstances which are not covered by the express provisions of the Code wherein justice has to be done. The reason is that the Legislature can foresee only the most natural and ordinary events and no rule can regulate for all times to come so as to make express provision against all inconveniences which are H infinite in number and so that their dispositions shall express all the cases that may probably happen. (ii). The prescribed rule of procedure may be abuse, or so used as to give a mere formality, the significance of substantive effect and thus obstruct, instead of facilitating the administration of justice. Such power of Court to prevent abuse of the process of the Court is recognized to exist as stated by Lord Denning M.R. in Goldsmith v. Sperrings. Ltd. (1977) 2 All ER 566, 754:‑‑ "In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It 'is used properly when it is invoked for the vindication of men's rights or the enforcement of justice claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The Judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. Sometimes abuse can be shown by the very steps being taken in the Courts. Further, the ultimate object of all procedural rules is to ensure that there should be a fair trial according to law; the fair trial is not all one‑sided; it means fairness to both the parties. " The inherent power of the Court is recognized only to meet those cases for which no provision is made by the Code. It follows, therefore, that where there are express provisions of law applicable to particular case, there is no inherent power in the Court to override them. The words `nothing in 'this Code shall be deemed to limit or otherwise affect' used in section 151 do not mean that the Code stands repealed where a Court decides to exercise its inherent powers ex debito justitiae to consolidate the proceedings. Such power can be exercised for the ends of justice. Mahmood, J. has laid down the principle in Narinsingh Das v. Mangal Dubey (83) 5 All. 163 that every procedure is to be understood as permissible till it is shown to be prohibited by law, as follows:‑‑ "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood, as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed." In absence of prohibition in the Code, the Court has inherent power ex debito justitiae to consolidate the two proceedings in the ends of justice, to avoid likelihood of conflict of opinion, discourage multiplicity of proceedings, duplication of trial of same issue between the same set of parties, to expedite decision, avoid delay anti inconvenience provided the causes are between the same parties, before the same forum, point in issue, defence are substantially common in all such action, common evidence is to be recorded. In deciding whether the two proceedings should be consolidated or not. The whole question is whether or nor in a long run it will be expeditious and advantageous to all concerned to have the two matters tried together as analogous cases. The consolidation of the proceedings neither affects the identity of the proceedings nor affects the rights of the parties provided under the law its effect is common trial, single decision, separate decrees: The consolidation facilitates the Court in trial as well as the parties Learned counsel for the appellants has argued on the rhythm of delay by stating that the concept of enacting the provisions of the Ordinance is speedy trial and the plaintiff's suit is pending decision for the last two years and how further long the plaintiff has to wait for the fruits of the decree that may be passed in his favour. His further contention was that the plaintiffs themselves had moved an application for consolidation of the proceedings but it was opposed by the counsel for the respondents. His further contention was that the request for the consolidation was made through the application at belated stage as the appellants have examined their side. His further contention was that the suit filed by the plaintiffs is Banking suit, whereas, the J. M. filed by the respondent is under the provisions of Ordinance, 1961. The two proceedings are independent cannot be consolidated and to support such contention, he referred two decisions from Lahore High Court:‑‑ (i) Manzoor Ahmed v. Messrs Facto (Pakistan) Ltd. and others , 1996 MLD 265, wherein the order consolidating the civil suit and application for ejectment was set aside with the observations that the civil suit has to be decided by the Civil Court in accordance with the provisions of the Civil Procedure Code while the ejectment petition has to be decided by a Rent Controller, a persona designata, under the, provisions of the Punjab Rent Restriction Ordinance. The two jurisdictions are entirely different. The Rent Controller exercises quasi‑judicial jurisdiction and is free to evolve his own procedure for deciding the petition. He is not bound to, follow the provisions of the Code of Civil Procedure. Conversely, Mr. A.I. Chundrigar, learned counsel for the respondents has referred the case of Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lahore 97 also of learned Single Judge from Lahore High Court, wherein a contrary view ‑ was expressed. The revision application was dismissed against the order of consolidation of analogous proceedings, i.e. the suit for specific performance of contract and ejectment proceedings. The counsel for the appellants also referred the view expressed in Messrs Pakistan Wires Products (Private) Limited and 5 others v. Industrial Development Bank of Pakistan 2003 CLD 59 in the said case, a plea was raised that a civil suit for recovery of money against the Bank was also filed which is still pending adjudication before the Civil Court and their request for consolidation of this petition (under IDBP Ordinance) alongwith that civil suit was rejected. Such plea was addressed as follows:‑‑ "Upon the examination of the record I do not find that the appellants, at any point of time, filed any application before the learned District Judge, thereby praying for the consolidation of the present proceedings with the proceedings in the civil suit, said to have been initiated by the appellants. Even during the arguments the learned counsel for the appellants could not produce any such documents to substantiate his assertion." It was further observed that the proceedings, out of which the present appeal has arisen, were for the attachment and sale of the mortgaged/ hypothecated properties, for which the exclusive jurisdiction vests with the learned District Judge, under section 39(1) of the Industrial Development Bank of Pakistan Ordinance, while the suit instituted by the appellants was pending before the learned Civil Judge. Obviously the two distinct causes were pending before two separate forums and those could not have been consolidated. This case is distinguishable with facts of the present case; in case, Pakistan Wires Products Ltd., the two proceedings were pending before two different forums, whereas the proceedings under appeal are pending before one forum. Mr. Khawaja Shamsul Islam has also referred the judgment of Supreme Court (AJ&K) in Sain Muhammad and 4 others v. Muhammad Younis 1993 CLC 723, wherein the consolidation order was set aside for the reasons that proceedings in both suits have been taken separately and statements of many witnesses have been recorded in both suits separately and ends of justice would not be served as in case of consolidation the evidence has to be recorded afresh and that will result in further delay in the disposal of the suits which were sub judice since 1978 and 1980. Conversely, Mr. A. I. Chundrigar controverting the pleas raised by the learned counsel for the appellants, maintained that the subject‑matter of the suit and the judicial miscellaneous emanates from the financial facilities availed by the appellants, the evidence, in both proceedings is common. The parties are also common except the respondents, National Development Finance Corporation and Muslim Commercial Bank against whom no relief has been claimed. The respondent N.D.F.C. is a pari passu charge holder, whereas, respondent No.10 is a second charge holder. He further maintained that the consolidation would facilitate the contesting parties in trial. He also contended that it will be expeditious and advantageous to all concerned that the two proceedings be tried together as analogous case. He further maintained that where it appears that there is sufficient unity or similarity in the matter in issue, in the proceedings or that the determination of the proceedings rests mainly on a common question, it is convenient to have them tried as analogous cases. His further submission was that even the Court can exercise such power without the consent of the parties, in support of his contention he referred the view taken in Harinarain Choudhary and others v. Ram Asish Shingh and others AIR 1957 Patna 124, to the effect that the Court has inherent power ex debito justitiae to consolidate suits, where it is in the ends of justice to do so to avoid needless expense and inconvenience to Parties In deciding whether two or more suits should be consolidated or, not, the whole question is whether or not, in the long run, it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue the suits or that the determination of the suits rests mainly on a common; question, it is convenient to have them tried as analogous cases. Such power under section 151 of the Code to consolidate suits, is exercisable even without the consent of parties. Learned counsel for the respondent also referred the case of Pakistan v. Agro Marketing Corporation Ltd. 1981 CLC 443, wherein the power of the Court to consolidate the suits has been explained:‑‑ "It is well‑settled by a long chain of authorities that the consolidation of the suits can be ordered by the Court in exercise of its inherent powers. The consent of the parties is not the condition precedent for exercise of such powers. The purpose of p consolidation is to avoid multiplicity of litigation, to eliminate award of contradictory judgments and to prevent the abuse of the process of the Court. These purposes are merely illustrative and not exhaustive of the powers of, the Court." On examination of the facts of the proceedings under present appeal, it is evident that the consolidated proceedings emanate from the provisions of two independent special enactments, namely, Financial Institutions (Recovery of Finances) Ordinance, 2001 (Banking matter) and the provisions of IDBP Ordinance (also Banking matter). Both proceedings are short cause cases, former is analogous to the proceedings under Orders 34 and 37 of C.P.C. with assertion variance, whereas, the petitions under section 39 of the IDBP Ordinance are para Materia to the proceedings under Order 34 and rules 54 and 58 of Order 21, C.P.C., both proceedings are pending before the same forum viz. before Single Bench on Original side. While exercising the special jurisdiction conferred under the Ordinance, the High Court bears fictional character of a Banking Court as defined in the Statute, whereas, under the IDBP Ordinance, the High Court also bears the fictional character of `District Judge'. The Judge of the High Court acting as a Banking Court' or as `District Judge' is not a persona designata on whom the jurisdiction vested by law is conferred. The view expressed by us gets support from view expressed by apex Court in Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109 and the view expressed in State Bank of Pakistan v. Chiragh Sun Engineering Ltd. 2000 YLR. 1198 by the Division Bench of this Court. Reverting to the instant case, in the suit, leave to defend has been granted, whereas in the judicial miscellaneous, the reply to show cause has been filed. The Code of Civil Procedure is applicable to both proceedings and procedure for trial after the grant of leave in Banking suit and reply to show cause in judicial miscellaneous are also analogous. The perusal of the proceedings under appeal shows that the both proceedings are analogous containing same cause. The evidence in both cases would be common between the same parties. Therefore, we are of the view that the consolidation of the two proceedings by the learned Single Judge of this Court, in exercise of the inherent power to facilitate the trial and to avoid conflict of decision and multiplicity of proceedings, is not contrary to the. law. Consequently, no exception can be taken to the impugned order even on merits. For the foregoing reasons, this appeal fails on law and facts and is dismissed in limine with costs. M.B.A./M‑544/K Appeal dismissed