1980 PLP 1745 (CLC)

(7) If no cause is shown on or before the date specified in the notice under subsection (4) or subsection (6), the District Judge shall forthwith maze the order ad interim absolute and direct the sale of the attached property or transfer the management of the concern to the Bank or confirm the injunction. (8) If cause is shown the District Judge shall proceed to investigate claim of the Bank and the provisions of the Code of Civil Pro cedure, 1908 (Act V of 1908), shall as far as practicable, apply to such proceedings. (9) On compelling an investigation under subsection (8) the District Judge shall pass an order :- (a) Confirming the order of attachment or directing the sale of the attached property, or (b) varying the order of attachment so as to release portion of the property from attachment and directing the sale of the remainder of the attached property, or (c) releasing the property from attachment, if he is satisfied that it is not necessary in the interests of the Bank to retain it under attachment, or (d) cornering or vacating the injunction, or (e) transferring or refusing to transfer the management of the concern to the Bank Provided that when making any order under clause (c), the District judge may make such further orders as he thinks necessary to protect the interest of the Bank and may apportion the cost of the proceedings in such manner as he thinks fit Provided further that unless the Bank intimates to the District Judge that it will not appeal against any order releasing any property from attachment such order shall not be executed until the expiry of the period mentioned in subsection (I1) or if an appeal is preferred, unless the High Court otherwise directs, until the appeal is disposed of. (10) An order under this section for the attachment or sale of pro perty shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908 (Act V of 1908), for the attachment or sale of property in execution of a' decree as if the Bank were the decree-holder. (11) Any party aggrieved by an order under subsection (7) or sub section (9) may, within thirty days from the date of the order, appeal to the High Court, and upon such appeal the High Court may, after bearing the parties, pass such orders as it thinks proper. (12) Nothing in this section shall be construed, where proceedings for liquidation in respect of the industrial concern have com menced before an application is made under subsection (1), as giving the Bank any preference over other creditors of the concern not conferred on it by any other law, for the time being in force."

4. The learned counsel for the respondents from the analysis of section 39 of the said Ordinance intends to show that the learned District Judge, derives powers under a special Statute and has to proceed in the manner under the said provisions and as such is a persona designata and not a Court subordinate to the High Court. The question of the main tainability of a revision under similar circumstances has been examined in several judgments in relation to other special laws. In Khadim Mohy ud-Din v. Ch. Rehmat Ali Nagra (P L D 1965 S C 459) their Lordships of the Supreme Court examined the status of the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance and that of the District Judge while bearing the appeals under the said Ordinance. Their Lordships examined all the relevant provisions of the Ordinance and in respect of the District Judge, acting as Appellate Authority their Lordships made the following observations which are quoted below :- "Subsection (t) gives power to the Provincial Government to appoint such District Judge as it think 6t" as appellate autho rity. Now the question is Is the District Judge as contemp lated in this section the District Judge in his judicial capacity as the Presiding Officer of the principal Court in the District or a persona designata ? If the Legislature really wanted that the District Judges should hear the appeal as the Presiding Officer of the principal Court in the District, it could easily said so. The fact that the Provincial Government is given power to select for this purpose such District Judges as it thinks fit" indicates that the intention was not to confer appellate power on him as the Presiding Officer of the principal Court in a District. This is also clear from the provisions of subsections (3) and (5) of section 15." In respect of the Rent Controllers their Lordships after the analysis of the relevant provisions came to the conclusion that some of the functions of the Collectors were judicial in character but yet he was not required to act judicially in discharging many official functions. The discussion of their Lordships relevant for the purpose may be quoted below :- "From the provisions of the Ordinance it appears that though under section 16 .the `Controller' has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sec tions 4, 10, 13 and 12 to make orders after holding such enquiry as he thinks fit. )n such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning wit nesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property inasmuch as within the Urban Area the landlord may not con vert a residential building into a non-residential building. The power thus conferred on the Controller would appear to be purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be satisfied that the claim of the landlord is bona fide". But there is no express mention of any enquiry by the Controller. If the word `satis fied' import the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure. We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi-judicial capacity."

5. In Mian Jamal Shah v. The Member, Election Commission Government of Pakistan, Lahore,- etc. (P L D 1966 S C I). In connection with the determination of a Judge of High Court acting as a Member of the Election Commission for decision of certain election disputes the question arose was whether a High Court Judge acted as a persona designata. The observations of the learned Chief Justice of Pakistan while commenting upon the Full Bench judgment in this behalf may be quoted below :- "The learned Judges were in ill probability right in considering the Member to be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of a superior Court issuing a writ to itself, viz. :- The process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves, why their orders should not be quashed. 1n the present case the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of `ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid actions by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudi cations, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of `ludicrousness there are other and weight considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provisions."

6. Similarly S. Anwar Ali State v. S. Niaz Ali Shah (P L D 1978 Lah. 1078) the question arose whether a revision was competent against order of the Rent Controller and relying on Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra it was held that a revision petition was not competent. In this behalf it was observed as under :- "This matter can be examined from another aspect, under sec tion 115, C. P. C. the High Court can revise any case which has been decided by any Court subordinate to High Court. In other words it can be revised only if it is a case decided by a Court. The Rent Controller which passed an order dated 16th January, 1976 is not a Court within the meaning of section 115, C. P. C. It may be quasi-judicial Tribunals but not a Court. Reliance can. be placed on Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another P L D 1965 S C 459 which reads as under :- Rent Controller acts in quasi-judicial capacity and not as a Court. On the basis of this reasoning the revision is -not competent and no relief can be granted to the petitioner." In the case reported as Syed Shamim Ahmad v. Riaz Fatima (P L D 1975 Kar. 448) a question arose whether an order passed by a District Judge or an Additional District Judge acting as an appellate Court under the West Pakistan Family Courts Act, 1964 was revisable or not. Under the West Pakistan Family Courts Act, 1964, S. 17 provides that the Civil Procedure Code shall not apply to proceedings and section 25 of the Guardians and Wards Act provides that in any proceedings under the said Act the procedure under that Act was to be followed. In this case the following cases were examined :- (i) Wajahat Ali v. Ghazala P L D 1970 tab.

641. In this case it was observed that the intention of the Legislature by not applying the Civil Procedure Code was to provide a speedy method of settling family disputes and if orders of interlocutory character were brought to the High Court the object would be defeated. It was for this reason held by Mr. Justice Nasim Hassan Shah (as his Lordship then was) that the order of the Family Court was not revisable. (ii) Tehceen Akhtar v. Mahmood-ul-Hassan P L D 1971 Lah.

875. In this case the order sought to .be revised was an appellate order and it was held that no revision was competent. (iii) Farida Parveen v. Qadeeruddin Ahmad P L D 1971 Kar.

118. In this case it was observed as under :- "Even though it is a Court subordinate to the High Court its decision on appeal under section 1 4 of the said Act cannot be said to be a case decided within the meaning of section 115, C. P. C. as the application of the Civil Procedure Code has been excluded by section 17 of the said Act. It is therefore, plain that there is no scope for a revision to the High Court against the appellate judgment of the District Court under section 14 of the said Act."

8. In Syed Shamim Ahmad's case all the three cases referred to above were examined in the light of a Full Bench judgment reported as Mst. Zaibun Nisa v. Muhammad Mozammil (P L D 1972 Kar. 410). The conclusion arrived at was in the following manner :- "

13. I have, therefore, come to the conclusion, with respect, that all the three cases which have taken the view that no revision of the present kind lies to this Court were correctly decided and I see no reason whatever to disagree with them."

9. After the examination of the above case law it would be abun dantly clear that S. 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 confers jurisdiction on the District Judge not as a Court) but as a persona designata. The District Judge derives powers under the said provisions and the proceedings are more of executive nature and strictly judicial. It may also be observed that the purpose of indicating the special provisions was to provide a speedy form in order to settle the claims of the Industrial Development Bank of Pakistan and in case interlocutory orders are made revisable, it would defeat very purpose of Ordinance as observed by Mr. Justice Nasim Hassan Shah (as his Lord ship then was) in Waiahat Ali Hasnie v. Mst. Ghazala (P L D 1970 Lah. 641) referred to above in relation with the orders in Family Courts. Even the procedure provided for preserving the properties and the interest of the Bank is different from what has been provided by tile Civil Procedure Code. The investigation of claim is not like a suit and the provisions of the Civil Procedure Code have been made as far as practicable. Respectfully applying the tests laid down by their lordships in Khadim Mohiuddin's case, I hold that no revision would be against an interlocutory order passed by a District Judge under section 39 of the Ordinance. This pro position is in the ultimate benefit of the Industrial Development Bank o Pakistan, so far as the question whether the amendment could be allowed or not can be examined either on appeal or any other legal remedy which the Industrial Development Bank of Pakistan may choose.

10. In. view of the above discussion this petition is held to be in competent and dismissed as such. There will be no order as to costs. M. Y. M Petition dismissed.