1999 PLP 3160 (MLD)

(4) No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court; and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the 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 the Special Court; (5) .." The learned counsel also referred section 5 of Banking Companies (Recovery of Loans) (Amendment) Ordinance II of 1983 which reads as follows;

5. Amendment of section 6, Ordinance XIX of 1979.--in the said Ordinance, in section 6

a (a) in subsection (1), in clause (b),-- (i) for words "an Assistant Sessions Judge" the "section" shall be substituted; (ii) the first proviso shall be omitted; and (iii) in the second proviso, the word "further" shall be omitted; (b) in subsection (2), clause (a) shall be omitted; and (c) in subsection (4), for the full-stop at the end a colon shall be substituted and thereafter, the following proviso shall be added and shall be deemed always to have been so added, namely: Provided that nothing in this subsection shall be deemed to affect- (a) the right of a banking company to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or (b) the jurisdiction of any Court such as is referred to in clause (a), or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day." In support of his arguments and with reference to the above legal position the learned counsel cited the following case-law: (i) Mst. Yasmeen Nighat v, National Bank of Pakistan (PLD 1984 Pesh 188), (ii) Civil Reference by District Judge, Karachi (1985 CLC 718). I have considered the contention of the learned counsel and have perused the case-law. In the case of Mst. Yasmeen Nighat v. National Bank of Pakistan (PLD 1984 Pesh. 188), A Division Bench while examining the affect of amending Ordinance II of 1983 observed that the same will also affect the pending cases and that by omission of clause (a) of subsection (2) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 the forum of the Civil Courts for the trial of such cases ceased to exist and it would preposterous to think that the suit pending in the civil Court could still be tried by them even when they had ceased to exercise jurisdiction in respect of the case. In the reference made by the learned District Judge, Karachi, (1985 C L C 718), Hon'ble Single Judge of this Court also took a similar view of the matter and observed that after the amendment in Banking Companies (Recovery of Loans) Ordinance, 1979 and the omission of clause (a) of subsection (2) of section 6 of the said Ordinance of 1979 the pending cases before the District Judge will be transferred to the Presiding Officer, Special Court constituted under the same Ordinance. In another decision reported as Mst. Yasmeen Nighat v. National Bank of Pakistan (PLD 1988 SC 391) the Hon'ble Supreme Court of Pakistan was pleased to approve the view taken by the Division Bench of Peshawar High Court, which was challenged in the said petition. The relevant observations are as under:-- "The situation in the present cases is similar and as there. is no contrary in Ordinance II of 1983 we are of the opinion, therefore, that in the present cases too the amending Ordinance (II of 1983) would effect the pending proceedings and all the suits would have to be tried the Special Court. I may be added that an examination of the provisions of Ordinance XIX of 1979 in juxtaposition with those of Ordinance II of 1983 shows fat the legislature by enacting section 6 (4) of Ordinance XIX of 1979 intended to oust the jurisdiction of all other Courts in the matter of Banking loans and to confer exclusive jurisdiction on Special Courts in respect of the matters which were made triable by the said Courts, under the terms of the said Ordinance and all such proceedings pending 'I' any Court immediately before the commencing day of the dinance XIX of 1979 stood transferred to the Special Court concerned. Under the provisions of the said Ordinance XIX of 1979 (under section 6 (2) (a) the jurisdiction of the Special Court was expressly excluded in relation to cases involving a sum of Rs. one lac or less. But by Ordinance II of 1983, the definition of the Special Court having been amended and subsection (2) (a) of section 6 of Ordinance XIX of 19'79 having been omitted, the Special Court established under section 5 (1) of the Ordinance become vested with the jurisdiction to try those cases which were specially excluded from its jurisdiction under section 6 (2) (a) of Ordinance XIX of 1979. As a result of this extension, the Special Court was conferred .the sole jurisdiction in such matters (the jurisdiction of all other Courts having been ousted in respect of such cases). The intendent of the law-maker which appears from the changes made by him, is that he intended that on such cases which under section 6 (4) of the Ordinance were to be led by the Civil Courts earlier were also to become triable by the Special Courts. This intention is also decipherable from the circumstance that with the omission of clause (a) of subsection (2) of Section 6 of Ordinance XIX of 1979 the forum of the Civil Courts for trial of such cases ceased altogether. Hence, it will not be reasonable to infer that the suits pending in the Civil Courts can continue to be tried by them, when their jurisdiction in respect of these cases has been completely taken away. Examining the facts of present appeals, with reference to the case-law as laid down by the Hon'ble Supreme Court of Pakistan and discussed above, it fear that on 12-4-1-983/7-5-1983 when the learned District Judge Khairpur proceeded and disposed of the suits by the impugned judgments, he had no jurisdiction to proceed with these cases as w.e.f. 30th January, 1983 (after the amendment in the Banking Companies (Recovery of Loans) Ordinance) such jurisdiction exclusively vested to the Special Court constituted under the said Ordinance XIX of 1979. Thus, after the amendment in law the only course available to the learned District Judge Khaipur was to transfer these cases to the concerned Special Court. As a necessary corollary of above, these appeals are allowed. The impugned judgments and decrees passed by the trial Court are set aside. The cases are remanded to the Court of District Judge Khaipur with directions that the same may be transferred to the concerned Special Court, established under the Banking Companies (Recovery of Loans) Ordinance, 1979, for disposal according to law. Q.M.H./M.A.K/N-125/K Appeals accepted.