1990 PLP 1473 (CLC)

6. It was argued in reply to the jurisdiction of Multan Bench that suit was being tried throughout at Multan, therefore, rightly sent to Multan Bench after the amendment of the Banking Courts Ordinance. It was never tried either at Lahore or at Bahawalpur. It is added that the appellants never raised a little finger as to the trial of the suit at Multan by the Special Judge Banking, therefore; the objection is without basis. It was submitted that the objection that neither the petition was competent nor moved by a competent person is legally and factually incorrect It was maintained that the petition had been moved competently and by a competent person. It was added that the appellants have raised all sorts of frivolous and baseless pleas without reference to the record and law. It is 11ubmitted that the application was moved by the learned counsel for the plaintiff I.nder his own signatures and was supported by his own affidavit while affidavit of "‑bdul Aziz was also appended in support of the petition. This way it cannot be mneluded by any logic that the petition was moved by said Abdul Aziz. The arguments are concluded with the submission that once learned counsel was appointed then he will remain incharge of the cause till his power of attorney was terminated with the leave of Court. He was not only competent to file the petition but also could have filed appeal etc.

7. The next argument on behalf of the respondent was that since the suit could not be dismissed, therefore, the Court could undo the wrong done to the plaintiff suo motu or under its inherent powers.

8. The appellants have no right to appear and participate in the proceedings until leave to appear and defend was granted, therefore, the proceedings were strictly between the Court and plaintiff. The defendant cannot impugn the order so passed otherwise it will defeat the very purpose of enacting the Banking Courts Ordinance and making Order XXXVII, C.P.C. applicable to the suits.

9. Now we take up the second set of the objections as to the competency etc. of the suit. The same are noted as under: (i) That the suit was wholly incompetent and Court had no jurisdiction to entertain it, therefore, whole proceedings were incompetent, null and void. The application could neither have been filed nor Court had jurisdiction to entertain it; (ii) That the person, who has filed the suit had no authority and power. The Board of the plaintiff Bank did not pass any resolution for institution of the suit; (iii) That the plaintiff as per provisions of C.P.C. was bound to plead facts showing the jurisdiction of Court. The plaintiff was also to disclose the facts constituting cause of action. Its failure to show cause of action and jurisdiction renders the suit incompetent; (iv) That according to law defendant must be borrower and the suit must relate to loan obtained from the Bank. Since there were no such allegations in the plaint, therefore, suit was incompetent; (v) The contention that the plaintiff has the right to invoke jurisdiction in itself is insufficient. It should have been clearly pleaded that the defendants are borrowers. It was added that the defendants never obtained any money from the plaintiff in foreign or Pak currency. There was no loan because in case of loan there must be a payment of money to the borrower or to concerned person in pursuance of the contract entered into by the borrower. There is even no such contract; (vi) That the suit was time‑barred: (vii) That the plaintiff was to state in the plaint as to whether the loan was paid to the borrower and how it was paid. In the instant case there is no such statement. It is added that the plaintiff was to further plead how the loan was repayable; (viii) That in the agreement the plaintiff had agreed to provide credit to the defendants but there was no machinery provided how the payment was to be made; (ix) That the suit was mala fide filed under the Banking Companies (Recovery of Loans) Ordinance, 1979; lx) That the agreement was not properly stamped and the proceedings were without jurisdiction for want of proper stamp. The plaintiff should not have been summoned at all; and (xi) That the agreement purported to be signed on behalf of the plaintiff by Regional Manager and there is nothing in the plaint that he possessed authority to enter into the contract and to execute this agreement on behalf of the plaintiff.

10. The learned counsel for the appellants in this way mostly consumed the time in pressing the arguments on the merits of suit. He had to be repeatedly reminded that the appeal was directed against the order passed on the application restoration of the suit. Therefore, the merits of the suit were irrelevant for decision of this appeal. The appellants can raise all these pleas when the suit is taken up. The learned counsel insisted that the suit was incompetent and the person filing it had no auihority. Therefore, the Court has no jurisdiction and all proceedings are rendered null and void and without jurisdiction. We are afraid, we cannot accept these arguments of the learned counsel for the appellants as it will amount to adjudication of the main suit. It is not the subject‑matter of this appeal. The suit is not before us, therefore, how we can deal with its merits? It will deprive either of the parties of the right of hearing in the original forum. We cannot usurp the jurisdiction of learned Judge in chamber, who is to adjudicate upon the suit in exercise of civil original jurisdiction.

11. The arguments are even against the very purpose of law. If the appellants 1 can raise all these points in an ancillary matter then what is the purpose of petition for leave to appear and defend. We are not tempted to adjudicate upon merits of suit because the same are beyond the scope of this appeal. In short since the suit is not before us, therefore, there is no occasion to adjudicate upon its merits.

12. Before proceedings with the technical objections of both sides, it is relevant to briefly refer to the interim orders. The suit was instituted on 26‑1‑1982 and notices were issued to the appellants for 28‑2‑1982. The appellants were served and they moved an application under Order XXXVII, Rule 3 (1) on 1‑2‑1988. The Reader of learned Special Judge recorded that the learned Presiding Officer was on tour to Rawalpindi, therefore, this petition be put up on 28‑2‑1`182 at Multan. No proceedings were taken on this petition. On the other hand, it was reported on next date that another suit was pending between the parties in Civil Court, therefore, the suit was adjourned to 26‑4‑1982. The interim order reads as under. In the first instance it was recorded that the file has not been received and thereafter the suit was adjourned for further proceedings to 31‑5‑1982 and then to 29‑6‑1982. The interim order reads as under: .~ The suit was, however, dismissed for non‑prosecution on this date. The interim order reads as under These orders clearly show that the suit was not fixed for any definite proceedings. So much so even the petition for leave to appear and defend submitted by the appellants was not taken up. It seems that the learned Special Judge was not clear as to which way to proceed. He was probably trying to find out whether the suit g was barred under section 10, C.P.C. and for that purpose he required file of the other suit referred to. It is not clear which party pointed out as to the other suit. There are no particulars of the suit like title, date and name of the Court. The learned Single Judge in chamber, in this view of the matter, concluded that it was not a date of hearing, therefore, the suit could not have been dismissed. We do not find anything wrong factually or legally with these findings.

13. Once these findings were recorded then it was not possible to withhold the order of restoration on any ground because if the suit was illegally dismissed then it was for the Court to undo the wrong done to the plaintiff. No party can be made to suffer for an act of Court. The learned Single Judge in chamber has elaborately dealt with this matter and we do not find anything to differ with the findings recorded by the learned Single Judge. The learned counsel for the appellants has referred to the case of Allah Ditta v. Aziz Din (P L D 1981 Lahore 508). If the same is minutely gone into, it becomes clear that it demolishes the entire edifice of the arguments of the learned counsel for the appellants. It N held in this case that order of dismissal on a date other than date of hearing void ab initio, without jurisdiction and nullity in the eyes of law.

14. Now we take up the preliminary objection of the learned counsel for respondent that appeal is not competent. The learned counsel for the respond has argued that the purpose of enacting Banking Companies (Recovery of Loa Ordinance, 1979 (XIX) was to provide a special forum for expeditious disposal the matters. The learned counsel, in this behalf, has referred to sections 7, 11 a

12. The arguments in nutshell were that the legislature in order to achieve I object of the expeditious disposal of the matters by the Special Court, on the c hand made provisions for expeditious disposal and on the other hand, g, finality to the orders and judgments of the Special Court. The right of appeal w also abridged. Before proceeding any further it is worthwhile to reproduce section 12 of the Ordinance, which reads as under:‑ "

12. Anneals.‑‑(1) Any person aggrieved by any order, judgment, decree sentence of a Special Court may, within thirty days of such order, judge decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed: Provided that no appeal shall lie from an interlocutory order which do not dispose of the entire case before the Special Court. (2) An appeal under subsection (1) shall be on any one of the following grounds, namely:‑ (a) the decision being contrary to law or to some usage having the force law, or (b) the decision having failed to determine a material issue of law or usage having the force of law, or (c) a substantial error apparent in the procedure provided by or under the Ordinance, which may possibly have produced error in the decision merits. (3) An appeal may be preferred under this section from decision made parte. (4) An appeal under this section shall be heard by a Bench of not less the two Judges. (5) No appeal shall be admitted for hearing unless the appellant deposits cash with the High Court an amount equivalent to the judgment debt c at the discretion of the High Court, furnishes security equal in value such amount." The following are the ingredients of this section:‑ (a) The person aggrieved by an order, judgment and decree etc. can maintain an appeal; , (b) Appeal to be preferred within 30 days; (c) No appeal shall lie against the interlocutory order, which does not dispose of the entire case; (d) Appeal shall be on the grounds specified in subsection (2); (e) Appeal is competent against an ex parte decision; (f) Appeal to be heard by not less than two Judges; and (g) Appeal not to be admitted to hearing unless the appellant has deposited in cash or furnishes security for the amount.

15. Now if the proviso to subsection (1) and subsection (5) are read together then it is clear that appeal against orders, decisions made on ancillary applications or matters is not competent. The legislature in its wisdom curbed the right of appeal while enacting proviso, therefore, now to successfully maintain an appeal, the appellant has to satisfy that the entire case has been disposed of. This is not all but even the pending appeals were made subject to proviso as is clear from section 13 of the Ordinance.

16. The learned counsel for the appellants, on the other hand, argued that the term' interlocutory orders' only occurred in Order XXXIX before Rule 6 otherwise this term has not been used anywhere in the C.P.C. the argument is that the interlocutory orders are to be the orders of the type mentioned in Order XXXIX C.P.C. It is further added that the word `case' has been used in section 115, C.P.C. and the superior Courts have held that it includes decision of application. In this behalf reliance is placed on the cases of Shuja‑ul‑Mulk v. Firm Abdul Ghafoor‑Abdul Qadim (P L D 1964 (W.P.) Peshawar 110), Mst. Murad Khatoon v. Mst. Fattal (P L D 1950 Baghdad‑ul‑Jadid 98), S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 (W.P.) Karachi 149), Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (P L D 1970 S C 288), Abdul Shakoor v. Abdul Rasool (P L D 1963 (W.P.) Karachi 356), Ghulab and another v. Fazal Ilahi (P L.D 1955 Lahore 26), Ram Sarup v. Gaya Prasad (1925 Allahabad 610) while point of competency of appeal. The learned counsel has referred to cases of Radha Mohan Datt, Silk Merchant v. Abbas Ali Biswas and others A I R 1931 Allahabad 294, Mst. Razia Begum v. Chairman, Intermediate and Secondary Board, Mirpur (1979 C L C 288), Baijnath v. Ram Narain and others (A I R 1941 Oudh 367) and Krishna Saroop v. Raj Bahadur Singh (A I R 1931 Allahabad 452).

17. We have given our anxious considerations to the arguments of both sides. The reference of the learned counsel to section 115, C.P.C. for purposes of F determining the meaning of the word `case' is not relevant because there is no such proviso to section 115, C.P.C. as is the case of section 12 of the Ordinance. Similar the term `interlocutory order' cannot be assigned the same meaning, as in the Order XXXIX. The reference is again irrelevant. If the argument of the learned counsel is accepted than the wording following the `interlocutory order' becomes meaningless and redundant. Since redundancy cannot be attributed to the legislature therefore the argument has no merit.

18. We find merit in the preliminary objection raised by the learned counsel for the respondent that appeal against an order is not competent until and unless it disposes of the entire case before the Special Court. It is a matter of common knowledge that entire matter cannot be disposed of while disposing of the application for injunction, attachment etc. Therefore, the term interlocutory order cannot be assigned the same; meaning and scope as in the Order XXXIX, C.P.C. The interpretation we are adopting further finds support from subsection (5) of section 12 which opens with the words `no appeal'. It is clear from this wording too that appeal can be maintained only when the entire case has been disposes of. The legislature has used the word without any qualification or specification of categorization. It is not applicable to certain types of appeals only but it is applicable to all appeals. The same is the position of pending appeals as per section 13 of the Ordinance.

19. The order subject‑matter of the appeal is not only an interlocutory order but: through this order the entire case has not been disposed of. It is only the application for restoration of the suit which has been disposed of. This is not all. The appellants themselves have treated the same as an interlocutory order while crying the plaintiff with notice under Order XLIII, Rule 3, C.P.C. before filing of tic appeal, therefore, they cannot now argue that the order was final and applealable.

20. The word `interlocutory order' has not been defined anywhere either in the. C.P.C. or in the Banking Companies (Recovery of Loans) Ordinance, 1979, he appeals were made competent under C.P.C. against orders covered by Order XLIII but the legislature under the Ordinance after making provision for an appeal against an order proceeded to qualify by adding proviso to subsection (1) that no appeal shall lie against an interlocutory order which does not dispose of the entire case It is thus clear that the word `interlocutory order' has been used in contradistinction to the term "order". The legislature, in order to achieve the object that appeal shall lie only against the final order, did not stop after legislating that no appeal shall lie against interlocutory order but: further qualified the interlocutory order which does not dispose of the entire case. The intention of the legislature is thin crystal clear from the language employed in the proviso that appeal can only be maintained against last or final order. The precedents relied on by the learned counsel for the appellants are not relevant and we respectfully following the judgments in the cases of Muhammad Ayub Butt, Crescent Factories Vegetable Ghee Mills and 5 others and Bank of America uphold the preliminary objection.

21. The other preliminary objection of the learned counsel for the respondent was that the appellants cannot maintain the appeal for the reasons that they have not been allowed leave to appear and defend the suit, therefore, they had no right to resist the application for restoration of the suit. The same was matter strictly between the Court and the plaintiff. The learned counsel went on to submit that since the appellants have no vested right to be represented at the stage of the application for restoration, therefore, they cannot maintain an appeal. It is concluded with the submission that the appellants are trying to argue the merits of the suit without having obtained leave to appear and defend. It is maintained that this is against the very scheme and purpose of Banking Ordinance as well as Order XXXVII, C.P.C. The objection has merit.

22. Now coming to the arguments of the learned counsel for the appellants, we first take up the argument as to the jurisdiction of Multan Bench of Lahore High Court to deal with the suit. The suit was throughout being taken up at Multan by the learned Special Judge before its transfer to the High Court. It was, in this view of the matter, that the learned Special Judge after amendment of the Ordinance transferred the file to this Banch. It is clear from the first order dated C' 26‑1‑1982 that the notices were issued to the appellants for appearance at Multan.

23. The application of the appellants for leave to appear and defend was also fixed for hearing at Multan. This is not all. The proceedings in the application for restoration were also conducted at Multan as is clear from interim order dated 19‑9‑1982. In this view of the matter, the file was rightly, transmitted to this Bench of the Lahore High Court.

24. The other objection was that the petition for restoration was hopelessly time‑barred. The argument was that although the petition was shown to have been filed on 21‑7‑1982 yet in fact it was filed much later as is clear from the fact that it was put up before the learned Special Judge Banking for the first time on H 9‑9‑1982. The argument is falsified by the record. According to the report of the Ahmad, the petition was filed on 21‑7‑1982 and same was fixed for 9‑9‑1982 for hearing. In this view of the matter, there is no merit in the plea of the appellants.

25. The next submission was that since it was pleaded in the application that representative of the Bank was present on 29‑6‑1982, therefore, the application under Order IX, Rule 9, C.P.C. was not competent. The argument is clearly misconceived. The petitioner bank has shown that the learned Special Judge did not proceed in accordance with law and the order was illegal, therefore, the absence or presence of the representative of the petitioner is of no consequence. Whether he was present or not it will not make any difference. We may observe here that it is not clear from the order dated 29‑6‑1982 that the suit was kept in waiting. On the other hand, the order shows that it was called at about 11‑00 a.m. and dismissed for non‑prosecution. Even if looked at from this angle the order is bad in law. The learned Special Judge Banking should have kept the matter in waiting and resorted to the order of dismissal towards the end of the day. The case of Punjab and Kashmir Bank Ltd. v. Sh. Mahboob Alam (PL, D 1966 (W.P.) Lahore 356) cited on behalf of the appellants goes against them. The relevant para reads as under:‑

5. Quite apart from the above aspect of the matter, it is difficult to get rid of the impression that the learned Civil Judge, who dismissed the suit acted hastily, in contravention of the clear instructions in High Court Rules & Orders Volume I, Part J, Ch.I. In Rules 5 and 6, ibid, the general tendency among judicial officers to dismiss cases in default hastily is deprecated in no unmistakable terms. Rule 6 reads:‑ "Some judicial officers are inclined to dismiss cases in default hastily in order to show an increased outturn. This tendency must be strongly deprecated. No case should be dismissed without giving a party reasonable opportunity to appear as indicated above When a suit or application is dismissed in default, the exact time of dismissal should be noted in the order by the Presiding Officer in his own hand." The order of dismissal does not show that the learned Civil Judge cared to wait for the plaintiff's counsel to appear. The exact hour of dismissal is not indicated on the file. It seems that no sooner the case was called, then it was dismissed because nobody immediately turned up to appear in response to the call. As pointed in rule 5 ibid, it is impossible to expect a man to remain in constant attendance for the whole of the time during which the Court is sitting."

26. It was vehemently argued that Abdul Aziz was not competent to move the application, therefore, the whole proceedings on the application were illegal and without jurisdiction. The unfortunate aspect of the matter is that most of the arguments were raised without reference to the record, which revealed that the petition was not moved by Abdul Aziz, the alleged Bank Officer but in fact it was moved by the Bank's learned counsel, who, as already noted, has appended his own signatures on the petition and it was supported by his affidavit. It is true that the second affidavit appended with the application is that of said Abdul Aziz but from this it cannot be concluded that the petition was moved by said Abdul Aziz. On the other hand, the petition is clearly moved by the learned counsel for the Bank whose power of attorney had already been filed alongwith the plaint. The power of attorney of a counsel shall be deemed to be in force as per Rule 4 (2) of Order III, C.P.C. until either it is determined with the leave of Court, or client or pleader dies, or proceedings in the suit are concluded as far as the client is concerned It was not the case here. The result was that the learned counsel continued to be Advocate of the plaintiff. Therefore, the learned counsel for the respondent has rightly urged that the petition was competently filed. The learned counsel relied on the case of Alamgir and others. The same does not advance the of the appellants. In this case the object of appending signatures was explained with reference to Order VI, Rule 16 C.P.C. It was held that irregularity in signatures or verification was a mere defect of procedure. One of us (Ihsan‑ul Haq Chaudhary, J.) has dealt with defective or lack of signatures, verification on the pleadings or power of attorney in case of Shadoo Muhammad Khan v. Ganmoon and 2 others (1989 M L D 4624). The relevant portion reads as under: "

16. The result is that the defects in the pleadings, applications, memorandum of appeal with regard to presentation, signing and verification are technical irregularities relating to matter of procedure and same cannot furnish basis for rejection of plaint, application or memorandum of appeal. The same can be rectified at any stage of the proceedings."

27. The fifth submission was the affidavits appended with the application are vague, purposeless and inconsequential. Since we have held that the order of the learned Special Judge Banking dismissing the suit was illegal and wrong, therefore, even if the affidavits are excluded still it was the duty of the Court to undo the wrong done to the plaintiff by an act of Court.

28. The next submission was that no resolution was passed, no permission granted, no instructions issued to present the application. The authorization to file the suit covers all acts flowing from the suit. Neither there was any necessity of further and fresh resolution of the board nor authorization by anyone was required to move the application. The purpose of the law is not that for each and every application there has to be a fresh resolution and authorization.

29. In the seventh place it was submitted that Abdul Aziz was not authorised to move the application. We have already held while dealing with fourth point that application was moved by the learned counsel for the bank and not by the said Abdul Aziz. Suffice here to observe that so long as the Bank did not object to the actions of said Abdul Aziz, the same will be deemed to be competently done. The authorization, in given circumstances, can be even oral.

30. The next argument was repetition of the arguments noted at numbers 4 and

7. No further instructions were required for submission of application for restoration of the suit.

31. The next argument was that the petition should not have been decided summarily. The learned Single Judge should have framed issues, recorded evidence and then decided the application. The argument is not only against the very purpose of enacting Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX) but also against the purpose of Order XXXVII. It sounds strange and illogical that the proceedings in the main suit should be summary while proceedings on the ancillary applications should be on the pattern of a regular suit. The application was supported by two affidavits. The appellants did not call for the deponents for cross‑examination, therefore, whatever was stated there would be deemed to be correct. This is not all. We have already held that the suit was wrongly and illegally dismissed, therefore, it was the duty of the learned O Special Judge Banking to restore the same. The suit was not only dismissed on a date which was not a `date of hearing' but also, dismissed on first call in early hours. The learned Special Judge did not consider that sometimes it is humanly. impossible to remain in attendance throughout day and enter appearance whenever the case is called.

32. Since the order of dismissal of the suit was patently illegal and void, therefore, there was no need to frame issues and record evidence. The suit was rightly restored. The relevant portion of judgment of learned Single Judge in chamber reads as under:‑ "

15. Counsel deposed in the affidavit to have been indisposed. That was enough for all purposes especially when it was not controverted by alike affidavit. The view I have formed above as to the order of "Mazeed Karvai", does not leave behind any room for insisting upon the petitioner‑Bank to explain their absence on the particular date. They could remain absent with impunity without any obligation to explain their absence. It was not a `hearing' of the case and the suit could not have been made the subject‑matter of dismissal for default."

33. The last argument was that the terms further proceedings and proper proceedings quite different and distinct in their import. We may observe in the very outset that so far as the law is concerned neither there is mention of `further proceedings' nor of `proper proceedings' in the C.P.C. These terms have been coined by the Courts for their own convenience. The terms are being used interchangeably and convey the same sense. The learned Single Judge in chamber has dealt with the phrase "further proceedings" at length with reference to precedents of superior Courts and we do not find any reason to differ with this view.

34. It is absolutely clear from the interim orders passed by the learned Special Judge Banking that he was not sure in which direction to proceed. It was pointed out on 28‑2‑1982 that some other litigation was going on between the parties. It were presumably the appellants, who whispered about these proceedings. The Special Judge Banking without pausing for a moment and applying his mind adjourned the suit to 26‑4‑1982. It is clear from the order dated 28‑2‑1982 itself that the suit was not fixed for any proceedings, whatsoever. It was simply an adjournment and this order was followed by orders dated 26‑4‑1982 and 31‑5‑1982 adjourning the case for further proceedings. When the Court has failed to take any proceedings on the fixed date then what does it mean by further proceedings In fact the order dated 28‑2‑1982 is key to understand and inerpret the subsequent orders and it is patently clear from this order that the Court was proceeding in vacuum. The proceedings were adjourned without any object, therefore,, the `further proceedings' cannot mean anything except that the Court was yet, to determine the proceedings to be held.

35. In a suit under Order XXXVII the only proceeding possible after the submission of application for grant of leave to appear and defend is to decide this petition. It is true that when somebody stated in the Court that another suit was Pending, the learned Special Judge could have paused for a moment to determine whether the present suit was liable to be stayed under section 10, C.P.C. or not. But this could only be done after the copies of the plaint in the civil suit were placed on record. It is clear from the file that neither of the parties were directed to submit the certified copies of the plaint of the civil suit nor file was requisitioned. Therefore, even it cannot be said that the Court was to decide whether proceedings in the present suit were liable to be stayed or not. We once again, at the cost of repetition, revert to order dated 28‑2‑1982. It is absolutely silent as to the purpose for which adjournment was granted. The subsequent orders are to be read and understood in the light of this basic order.

36. We are constrained to observe that the learned Special Judge Banking proceeded in a very casual manner with a suit involving a substantial amount of over twenty lacs. The appellants have submitted an application for leave to appear and defend the suit. The same was fixed for 28‑2‑1982. The learned Special Judge even failed to take notice of the same what to talk of taking the proceedings in the main suit which was just adjourned purposelessly. In this view of the matter, the phraseology, further proceedings used by the learned Special Judge can be interpreted to mean that the Court was yet to determine the proceedings T to be taken in the suit. Once this is the conclusion on facts of the case then Order IX, Rule 9 applies. Even if we hold that Order IX, Rule 9 is not applicable still a Court which passed an order is fully competent to undo the same under section 21 of the General Clauses Act. If it is held that there is no provisions to deal with such a situation then the matter will be covered by the inherent powers. It cannot be held that there is no provision in the law to redress the grievance of a party as to a wrong done to it by an illegal order of a Court.

37. The upshot of this discussion is that the appeal is dismissed with costs both as being incompetent as well as on merits. AA./A‑941/L Appeal dismissed.