1993 PLP 1627 (CLC)

It, therefore, arises for consideration as to what is the precise nature of jurisdiction which this Court exercises as a Special Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 and whether that jurisdiction is restricted in its invocation to the main seat of the High Court of Sindh, which alone has original civil jurisdiction, pursuant to the Sindh Courts Act, VII of 1926, as amended and continued from time to time. Legislative history of the amendatory legislations is ably treated by Naimuddin, J:, who spoke for the Full Bench In re: Office Reference, PLD 1981 Kar.

210. For the foregoing purpose it will be necessary to revert to section 2(f) of the Ordinance, which defines a Special Court thus:‑‑ Section 2(f). "Special Court" means‑‑ (i) in respect of a case in which the outstanding amount of the loan does not exceed to million rupees, or the trial of offences punishable under this Ordinance, a person who is or has been a District Judge or an Additional District Judge and is appointed by the Federal Government, by notification in the official Gazette, to be a Special' Court to exercise jurisdiction within such territorial limits as may be specified in the notification, and, in the absence of such appointment, the District Court; and (ii) in respect of any other case, the High Court in the exercise of original civil jurisdiction." It is noteworthy that the Banking Companies (Recovery of Loans) Ordinance, 1979, through section 1(2) thereof, postulates that the Ordinance extends to the whole of Pakistan. Obviously, under the current Constitutional set‑up, each of the four provinces in the, land has a High Court, as the Apex Court in the province. Therefore, section 2(f), above quoted, when it confers the jurisdiction of a Special Court on "the High Court" must necessarily imply each of the High Courts in the provinces of the Federation, and the absence of the peculiar Original Civil Jurisdiction in the High Courts other than the High Court of Sindh at Karachi would be of no significance. The use of the definite article "the" in the words "the High Court" in section 2(f)(ii) has, much the same effect as the expression "the District Court" in section 2(f)(i) ibid, denoting every District Court, qualifying under such subsection. Any other interpretation would lead to manifest absurdity, as without each of such High Courts being designated as Special Courts in matters involving outstanding amounts exceeding Rs. 10 millions, there would be no Special Court in relation to such matters except in the Province of Sindh where alone and that too for the defined territory of Karachi the High Court exercises Original Civil Jurisdiction of a special character. The legislative intent of constituting each of the four High Courts as Special Courts in the given matters is, accordingly, manifest. Coming directly to the significant phrase in section 2(f)(ii) of the Ordinance namely, "the High Court in the exercise of Original Civil Jurisdiction" one way of resolving the question could be, as pointed out by Mehboob Ahmad, J., as he then was, in the Lahore High Court case of Bank of America NT & SA v. M/s. Mairaj Sons Limited etc., COS No.50 of 1983, decided on the 9th of March, 1988, where it was observed that the word "its" being missing before the expression "Original Civil Jurisdiction" the conferment of jurisdiction on a High Court, as a Special Court under section 2(f)(ii) ibid, was not germane to any subsisting "Original Civil Jurisdiction", pre‑existing on the date of the conferment but was creative of a new jurisdiction made available thus to each of the High Courts in the Federation. The decision was followed by Malik Muhammad Qayyum, J., in National Bank of Pakistan v. M/s. Link Belt Industries PLD 1992 Lah.

80. Similar opinion, though indirectly, was expressed earlier in United Bank Ltd. v. Jaffer Flour & Oil Mills Ltd., PLD 1985 Lah.

541. With these views I respectfully agree. However, there is another way of looking at the problem. Original jurisdiction, of one kind or another, has always subsisted in the four High Courts of the Provinces as well as in their predecessor Courts namely, the High Court of West Pakistan and the High Court of Sindh and Balochistan under clauses 9, 13 and 15 of the Letters Patent, originally applicable to the High Court of judicature at Lahore. Indeed, the Constitutional jurisdiction of the High Courts itself has been found not to be an extraordinary Original Civil Jurisdiction but Original Civil Jurisdiction, as such, in Hussain Bux v. Settlement Commissioner, PLD 1970 SC

1. Similar views were recorded in Ahmad Khan v. Chief Justice and Judges of the High Court, West Pakistan PLD 1968 SC

171. Yet it is not a jurisdiction equivalent to hearing and decision of a suit: Asad Ali s. Settlement and Claims Commissioner P L D 1974 Kar. 345 and Province of Balochistan v. Sher Muhammad Marri P L D 1975 Lah. 1373. Even so, that is another kind of Original Civil Jurisdiction, constitutionally conferred, which has pre‑existed the promulgation of the 1979 Ordinance and, therefore, Original Civil Jurisdiction in itself, was neither a new nor a foreign concept when it came to be referred in section 2(f)(ii), aforesaid. As to Company Jurisdiction, again of an original character, reference may be made to Abdul Aziz v. Dr. CA. Chishty, P L D 1959 Lah. 31, and Eastern Company (Pvt.) Ltd. v. Gul Begum PLD 1980 Lah.

69. Thus it could conceivably be such a pre‑existing Original Civil Jurisdiction of the High Courts, in its generality, which came for invocation under section 2(f)(ii) supra. Reverting to the Original Civil Jurisdiction, which is specific to the Karachi Bench of the High Court of Sindh, it may bear mention here that such is a peculiar jurisdiction and has been termed variously as Ordinary, Statutory, Special or even District Court jurisdiction. It dates back to the times of Sindh Courts Act, 1926 (amended by the Karachi Courts Order, 1956) which declares the then Chief. Court of Sindh, in relation to the District of Karachi, in specified matters, to be the Principal Court of Original Civil Jurisdiction in the area. This jurisdiction has continued to be exercised in the context of Karachi under successive dispensations. The character and connotations of this jurisdiction came up for consideration before Wahiduddin Ahmad, J., in the leading case of Firdous Corpn. v. Japan Cotton & General Trading Co. Ltd., P1.D 1961 Kar. 565 and was declared not to be the Ordinary Original Civil Jurisdiction of the Court but jurisdiction of a "special nature". The decision was dissented from in the Division Bench case of Razak v. Usman P L D 1975 Kar. 944 but on appeal that decision has been reversed by a Supreme Court Bench consisting of Justices Abdul Kadir Sheikh, Naimuddin, Ajmal Mian, Sajjad Air Shah and Nasir Aslam Zahid in Province of Sindh v. Razzak 1991 SCMR 920 (D.O. 25‑2‑1991; detailed judgment, even though available, not yet reported) See also Akbar Hussain v. Aisha Bai P L D 1991 SC

985. That this precise jurisdiction of a "special nature" was alone not the subject of conferment under section 2(f)(ii) of the 1979 Ordinance is clear because the reference is not to Ordinary Original Civil Jurisdiction or to any Statutory Original Civil Jurisdiction but, pure and simple to Original Civil Jurisdiction, as such, which jurisdiction may be termed as the genus of which extraordinary Original Civil Jurisdiction, under the Letters Patent, Ordinary Original Civil. Jurisdiction, Special or Statutory Original Civil Jurisdiction etc. are species. Still, it must be noted that the expression Original Civil Jurisdiction is often used loosely as a synonym for Ordinary Original Civil Jurisdiction or even a Statutory Original Civil Jurisdiction. Thus it is taken casually to denote the jurisdiction to try and decide a suit. A more accurate way to describe Original Civil Jurisdiction would be to connote a jurisdiction, attracting and embracing proceedings of a civil nature liable to commence in a specified forum and designated to conclude in the same forum, subject to a right of appeal etc. available elsewhere: D., F. Hassan v. Habib Bank Ltd, PLD 1974 Lah. 117 (119). At any event, as to the Ordinary Original Civil Jurisdiction, peculiar to Civil Courts, the Supreme Court is already on record declaring that such jurisdiction under the Letters Patent does not subsist in the Lahore High Court, and same would be true of other High Courts because it is upon the extension of the Letters Patent that most of the jurisdictions have come to vest in such High Courts: Ahmad Khan v. Chief Justice and Judges of the High Court, West Pakistan P L D 1968 SC

171. That, however makes no difference because it is not with Ordinary Original Civil Jurisdiction, in its pristine form, but with Original Civil Jurisdiction, in a broader context that we are concerned here. On parity of reasoning, if each of the High Courts in the provinces has been conferred jurisdiction under the Banking Companies (Recovery of Loans) Ordinance, 1979, as a Special Court, each of the Benches of such Courts should have like jurisdiction within its own territorial limits. Suit under the 1979 Ordinance. therefore, where relevant, can be instituted at each of such Benches, unless otherwise precluded under the applicable Benches Rules of the various High Courts. In so far as we are concerned, per notification dated 13‑10‑1992 as well under the precursor notifications the learned Chief Justice has not notified any preclusion in respect of the matters covered by the 1979 statute under reference. Each of the Beeches of the High Court of Sindh, accordingly, can be approached with suits falling under and covered by section 2(f)(ii) above. Another aspect of the matter is and there is some authority for the proposition that a High Court is not bound by the restrictive postulates of sections 1.6, 17 and 20 of the Code of Civil Procedure in virtue of the broadening effect brought about by section 120 of the . Code. It is often sweepingly said that irrespective of the fact whether a property, subject‑matter in a given suit, is not situated within the territorial limits of the Karachi Bench of this Court or cause of action, either wholly or in part, not arising within such limits or the defendant or defendants not carrying on business or putting up in the area of that jurisdiction; this Court, in the exercise of its Statutory Original Civil Jurisdiction under section 8 of the Sindh Courts Act, 1926, can still entertain suits, where the jurisdiction of the Court has been invoked. There can be no gainsaying that the restrictive postulates in sections 16, 17 and 20, C.P.C. do not curtail the jurisdiction of this Court as a High Court as envisaged in section 120 of the Code. A High Court is competent to frame its own Rules regulating the procedure, as applicable to exercise of its Original Civil Jurisdiction, the only restriction being that these Rules, when framed should be in consonance with and not in derogation of the Letters Patent, Section 129 and Order 49, C.P.C. The Sindh Chief Court Rules (O.S.) and the High Court Rules and Orders are such Rules. None of these Rules appear to control the area territorially. Does this mean and imply that the Original Civil Jurisdiction of the High Courts has no territorial constraints? Correspondingly, does the writ of the High Courts extend even beyond the provinces and the capital of the Federation? For one thing, the very fact that each Province in the Federation is endowed with a High Court of its own connotes a territorial element. For another, each High Court having more than one Benches, signifies another compartmentalisation. Indeed the applicable Benches Rules cover the subject. For our purposes Rules 3 and 4 of the High Court of Sindh Benches Rules, 1987, contemplate assignment of areas and local limits for the Benches and control filing of matters, arising within such areas and limits. These are generalised restrictions subject only to Rule 6 under which the aforequoted notification of October 13, 1992, has issued. Relevant to the Original Civil Jurisdiction of this Court confined to Karachi, none of the' authorities on the subject lays down that this Court can entertain a suit in the exercise of its special Original Civil Jurisdiction without one or more of the ingredients necessary to attract the jurisdiction of this Court, which while in view of section 120 of the Code of Civil Procedure has undoubtedly a very broad base yet there should always be some rationale to attract that jurisdiction. For this, in view of Article 2A in the Constitution and the Enforcement of Shariah Act, 1991, we may resort to the Islamic Fiqh or where the Common law and the Fiqh do not conflict even the Common lave. Either way there must be some jurisdictional facts necessary to invoke 'jurisdiction. These, on principle, may be either the defendant's residing or carrying on business or in cases of plurality one of the defendants being so subject or the cause of action, wholly or in part, arising or a property, subject matter of the suit, being situate or a defendant‑firm or company having a main or branch office within the jurisdiction, which can attract the Original Civil Jurisdiction of this Court. In the absence of at least one of these aspects the jurisdiction would not be attracted. The presence of section 120 on the statute book cannot mean and was never meant to mean that a High Court covered by that section could exercise jurisdiction merely for the asking without any jurisdictional fact being pleaded or shown. The only logical effect of section 120 of the Code seems to be that, subject to discretion of the Court itself, the technicalities in sections 16, 17 and 20 cannot be pressed into service to divest a High Court of its Original Civil Jurisdiction if such, on general principles, is otherwise attracted. This should also be the cumulative effect of Kashinath v. Anant, I L R 24 Bom. 407, West Pak. Industrial Development Corpn. v. Fateh Textile Mills Ltd., P L D 1964 Kar. 11, Muhammad Balluch v. Water Oil Company, Law Notes 1969 Kar.

51. Muhammad Shabbir v. Abu Dhabi Petroleum Co. Ltd. PLD 1975 Kar. 138, Fauji Foundation v. Yousuf 1985 CLC 2799, Agricide (Pvt.) Ltd. v. Ali Agro S. Corpn. Ltd., 1988 CLC 59, National Bank of Pak. v. Gammon Pak. Ltd., 1990 CLC 1139, Sh. Muhammad Amin & Co. v. PIDC, 1991 CLC 684 etc. In this background and the jurisdiction of the Benches of the High Court being co‑extensive with the main seat I have not found any jurisdictional fact pleaded in this suit, which would make the institution of the suit a proper institution at Karachi. Neither the defendants carry on business at Karachi nor the loan was advanced at Karachi nor its repayment was due at Karachi nor the mortgaged property is situate at Karachi. The defendants could, therefore, validly object to the institution of the suit here. In view, however, of the plaintiff itself conceding that a transfer might be made to the Sukkur seat of the High Court the defendants need not have taken that objection. How then is this matter to be dealt with? Even if the suit has not been validly instituted at the main seat, it is instituted in the same Court, at one of the Benches of which it could have been instituted without any exception. For return of a plaint under Rule 10 of Order VII, C.P.C. the institution should be in a Court which from its inception had no jurisdiction to entertain the suit. That is not the case here. Proper institution having had to be made at Sukkur the jurisdiction to transfer under Rule 5 of the High Court of Sindh Benches Rules, 1987, is thus attracted. That is a prerogative of the Hon'ble Chief Justice alone. The case should, therefore, be laid in terms of Rule 5 for appropriate orders in this behalf. The Hon'ble Chief Justice may then also consider the position of future institutions and whether the notification dated October 13, 1992, under Rule 6 ibid, calls for modification, restricting institutions only at the main seat of similar matters. Then too, the fresh notification, if any, may be effective only from the date of its issuance and may not cover a case, which already has erroneously been filed. In this category there could be a good number of suits covered by the Banking Companies B (Recovery of Loans) Ordinance. What is to become of them is a subject on which I would prefer to say nothing. Such, unless agitated in Court, remains an administrative matter, lying within the exclusive powers of the Chief Justice of the Court. To be laid before the Hon'ble Chief Justice for orders. A.A./M‑1836/x. Order accordingly.