2005 CLD 314 (PLP)

MIAN SAQIB NISAR, J.‑‑‑The respondent‑bank, brought a suit for the recovery of an amount of Rs.3,50,174, inter alia against the appellant, claiming that the finance facility was granted to defendants Nos.l and 2; the appellant stood as a surety for _the repayment of the loan amount and had deposited as security for Investment Certificates amounting to Rs.2,00,000, out of which, three Certificates of the value of Rs.1,50,000 belonged to the minor children of the appellant, whereas one Certificate of Rs.50,000 was in his own name; thus, the appellant being a surety is also liable for the payment of the suit amount.

2. The appellant filed the application for leave to appear and defend, which has been disallowed by the learned Banking Court and the suit has been decreed. Hence this appeal.

3. Learned counsel for the appellant, by relying upon the order of the Honourable Wafaqi Mohtasib (Ombudsman) dated 8‑10‑1986, which was passed on the complaint of the appellant against the respondent‑bank, has argued that, as far as the Certificates of the minors are concerned, it has been declared by the Ombudsman that such transaction of surety was void ab initio; for the appellant, it has been categorically concluded that he stood discharged under section 135 of the Contract Act; this order was not further challenged by the respondent through a representation before the President of Pakistan and had thus, attained finality for all intents and purposes; despite of the above, the leave has been illegally and erroneously refused to the appellant.

4. We have heard the learned counsel for the parties and find that, according to the law, surety of the properties of the minors, could not have, at all been given by the A appellant, even if, he was their natural and legal guardian, therefore, to this extent, the transaction was absolutely void ab initio and has been rightly so held by the Ombudsman. As far as the appellant himself is concerned, the learned Ombudsman has determined that he stands discharged under section 135 of the Contract Act. Such order of the Ombudsman has not been challenged and thus, has become final. According to the provisions of section 29 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, the validity of the order passed by the Ombudsman cannot be called in question and determined by any Court. This obviously, includes the Banking Court as well. It may be pertinent to state here that, as per, the settled law, what cannot be done directly, that cannot be done indirectly. Meaning thereby that even while deciding the application for leave to appear and defend, the Court indirectly could not ignore or violate the order of the Ombudsman, which if done, would mean the exercise of the jurisdiction, excluded by the express provisions of law. In the light of above, we allow this appeal with the consequences that the judgment and decree of the learned Banking Court qua the appellant is set aside; leave application of the appellant is allowed, and the Banking Court is directed to decide the matter in accordance with law. No order as to costs. M. H. / M‑29 / L Appeal allowed