2007 PLP 683 (CLD)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against the order dated 6-4-2002 passed by the learned Single Judge of Lahore High Court in Chambers whereby C.M.A. No.47-B of 1999 has been dismissed pursuant to the dictum laid down in Gold Star v. Muslim Commercial Bank 2000 MLD 421.

2. Leave to appeal was granted by means of order dated 7-3-2003 which is reproduced herein below for ready reference:-- "Leave is granted to resolve the contradictory views expressed by the Lahore High Court and Sindh High Court as reflected in judgment in "Gold Star v. Muslim Commercial Bank 2000 MLD 421; Mian Munir Ahmed V. United Bank Limited and 3 others PLD 1998 Karachi 278 and Messrs Tawakal Export Corporation and 5 others v. Muslim Commercial Bank Ltd. CLC 1997 Page 1342".

3. Heard the learned counsel on behalf of the parties, scanned the entire record and perused the order impugned carefully which has been passed in view of the dictum laid down in case Gold Star v. Muslim Commercial Bank (supra). A bare reading of the order impugned would reveal that all the contentions incorporated in C.M.A. No.47/B of 1999 were neither dilated upon nor decided in a comprehensive manner and it was also ignored that the controversy as to whether an application under section 12(2), C.P.C. is maintainable in the matters under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has been set at naught by the different High Courts keeping in view the facts of each case. There is no cavil to the proposition that the provisions of Civil. Procedure Code, 1908 continue to be applicable being not ousted by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. In this regard reference can be made to the dictum laid down in case of Muhammad Ayub Butt v. Allied Bank Ltd. PLD 1981 SC

359. The question as to whether section 12(2), C.P.C. has been ousted or not should have been examined by the learned Single Judge in the light of provisions as enumerated in section 3 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which could not be done. The significance and import of section 12(2), C.P.C. was examined by the learned Sindh High Court in case Mian Munir Ahmed v. United Bank Limited PLD 1998 Karachi 278 and it was held as follows:-- "The appellant can seek relief under section 12(2) of the Code of Civil Procedure. We would, therefore, leave the question of quantum of liability of the appellant to be taken up in terms of section 12(2), C.P.C. That provision, needless to add, effectively provides for safeguards against a decree which may have, inter alia operated in excess of jurisdiction. The applicability of section 12(2), C.P.C. to the proceedings before a Special Court does not seem to be in doubt because section 3 in the Banking Companies (Recovery of Loans) Ordinance, 1979, expressly mandates that the provisions of the Ordinance shall be in addition to, and unless otherwise provided, not in derogation of other laws. Besides, a Special Court, in all the powers of a civil Court under the Code of Civil Procedure, which obviously includes powers under section 12, C.P.C. What is more, procedure of such Court, relevantly, pursuant to section 7 of the Ordinance, is the summary procedure provided for in Order XXXVII of the Code, in turn subject to section 12, if attracted.

4. We have also examined the dictum laid down in case Gold Star v. Muslim Commercial Bank (supra) relevant portion whereof is reproduced herein below for ready reference:-- "As against this, the learned counsel for the respondent-Bank contends that the suit was entertained and tried by the learned Banking Court No.IV which had jurisdiction in the matter and that even the appellants/defendants had made an application for leave to defend before the Court and had been appearing before the Court, therefore, the objection that the learned Banking Court No.IV has proceeded without jurisdiction in the matter is merely an afterthought and has no substance whatsoever. It is contended that against the judgment and decree no appeal was filed which has thus attained finality in terms of section 27 of the Act and no application under section 12(2) of C.P.C. was competent which was rightly dismissed by the' learned Banking Court No.IV. It is contended that there was no question of any misapprehension as to the date of hearing as on 5-8-1998 the date was fixed in the presence of the learned counsel who had appeared on behalf of the appellants/defendants. Her further contention was that the assertion of the appellants/ defendants as to inadvertent noting of the date of hearing as 16-10-1998 is belied by the fact that application under section 12(2) of C.P.C. was filed on 15-10-1998". A bare perusal would reveal that cogent reasoning has been given in the Gold Star case (supra) for non-application of section 12(2), C.P.C. which has not been taken into consideration by the learned single Judge in Chambers. In sequel to above mentioned discussion the order impugned is hereby set aside and the C.M.A. No.47/B of 1999 shall be treated as pending and decided in accordance with law and on merits of the case after affording proper opportunity of hearing to all concerned. The appeal is disposed of in above terms. These are the reasons for our short order dated. 19-9-2006 which is reproduced herein below for ready reference:-- "For the reasons to be recorded separately this appeal is accepted and order impugned is set aside. The application preferred on behalf of appellant under section 12(2), C.P.C. shall be treated as pending and be disposed of in accordance with law and on merits by the Banking Court." M.H./M-21/SC Case remanded.