P L D 1985 Lahore 541 (PLP)

"Counsel for the parties present. United Bank Limited has brought a suit for the recovery of Rs. 4,78.014.97. The defendants had been permitted to contest the suit and they have filed the written statement and counter-claim. The counter-claim is of the value of more than rupees ten lacs. In this way it has gone beyond my jurisdiction under the amended Ordinance. The file is, therefore, sent to the High Court for trial. (2) There is another suit between the same parties. It is of the value of Rs. 5,30,388.22. The counsel for the plaintiff has applied for the consolidation of the two suits on the ground that the same questions of law and facts are involved in this suit between the same parties and even pertain to the same cause of action. The counsel for the defendants Nos. I and 2 has no objection in consolidating the two suits in view of the above-mentioned reasons. The suits are, therefore, consolidated. the proceedings shall betaken out in the suit under orders. The other suit will come up alongwith this suit."

4. In Suit No. 10 of 1983 the learned Special Judge (Banking), Lahore passed the following order on the same date, viz. 5-4-1983 : "Counsel for the parties present. This suit has been consolidated with other Suit No. 878/82 between the parties. The file is to come up alongwith that suit and is transferred to the Lahore High Court, Lahore."

5. After necessary service of the parties when the cases came up for hearing before me the objection as to whether this Court can entertain and try the two suits aforementioned when the jurisdictional value of both the suits is less than Rs. 10 lacs, merely because a counter-claim for recovery of Rs. 1,50,35,000 has been filed in one of the suits was raised.

6. The learned counsel for the plaintiff submitted that it being the admitted position that the jurisdictional value of the two suits as instituted by the plaintiff is less than Rs. 10 lacs these would obviously be triable by a Special Court as denned by section (2) (f ) (i) of the Banking Companies (Recovery of Loans) Ordinance, 1979 and that merely because a counterclaim of more than Rs. 10 lacs had been filed in one of the suits will not alter the above position especially when the counter-claim itself has not been lawfully presented.

7. The learned counsel for the plaintiff also submitted that a counterclaim is not envisaged by any of the provisions of the Code of Civil Procedure and that the only legal provision for a claim that may be made by the defendant against the .plaintiff in a suit is as provided by Order VIII, rule 6 of the Code of Civil Procedure, viz. a set off. He argued that a set off has got to be for an ascertained sum and not a claim as made by the defendant in the counter-claim filed by it in C. O. S. No. 86 of 1983. He also urged that put to the test of the pronouncement of the Supreme Court of Pakistan in Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another (P L D 1983 S C 5), the counterclaim even has not been properly filed and thus could not be made the basis for transfer of the two suits to this Court for trial. Reference was also made by the learned counsel for the plaintiff to Dewan Jairam Dass and another v. Syed Niamat Ali and 4 others (P L D 1982 Quetta 14) and Messrs United Bank Ltd. v. Messrs Muhammad Saeed Muhammad Hussain (1983 C L C 428), in support of his above contentions.

8. The learned counsel for defendant No. 3 only supported the contentions of the learned counsel for the plaintiff.

9. On the contrary the learned counsel for defendant No. 1 submitted that the Supreme Court judgment, P L D 1983 S C 5, clearly lays down that apart from a set off provided for by Order VIII, rule 6 of the Code of Civil Procedure, an equitable set off/counter-claim can be filed by a party in a suit instituted against it by making payment of the court-fee on the amount claimed in the counter-claim. He submitted that in view of the position that counter-claim of more than the pecupiary jurisdiction of the Special Judge (Banking), Lahore had been filed on 24-1-1983 when that Court had the jurisdiction to try suits of any value, the said suit viz. C. O. S. No. 86 of 1983 had to be forwarded to this Court for trial as only the High Court in its original civil jurisdiction could try suits of the value of more than Rs. 10 lacs after promulgation of the Banking Companies (Recovery of Loans) (Amendment) Ordinance 11 of 1983 and the jurisdictional value of that suit had increased in view of the counterclaim. As regards the other suit, viz. C. O. S. No. 10 of 1983 he submitted that since this suit had been consolidated with the other suit by an order of the Special Judge (Banking, the same also had to come to this Court for disposal in accordance with law.

10. The last contention of the learned counsel for defendant No. 1 was that by virtue of Article 203 of the Constitution of Islamic Republic of Pakistan the High Court is vested with the power of superintendence and control over all Courts in the Province and as such in the attendant circumstances of the case that a counter-claim of. more than Rs. 1,50,00,000 has been filed by the defendant against the plaintiff the High Court in exercise of the above power could otherwise transfer these cases to its own file for trial and adjudication by it. Reliance as regards the competence of the High Court to transfer any case to its file from any other Court in the Province was placed on Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others (1981 S C M R 143), Ghulam Nabi v. Syed Muqarab Hussain and 3 others (P L D 1974 Kar. 408) and Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. (P L D 1984 Lah. 69).

11. The learned counsel for the plaintiff in reply submitted that by the filing of a counter-claim the jurisdictional value of the suit cannot undergo a change. He also submitted that it has been incorrectly stated on behalf of defendant No. 1 that the counter-claim had been submitted in the Court of Special Judge (Banking), Lahore on 24-1-1983. He with reference to the Order Sheet of the Special Judge (Banking), Lahore pointed out that the written statement/counter-claim had in fact been filed on 6th of March, 1983 when the Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 had already been promulgated on 30th of January, 1983 by which Ordinance the pecuniary jurisdiction of the Special Judge (Banking) had been limited to entertainment of suits of less than Rs. 10 lacs.

12. Strictly speaking the question requiring determination at this stage is whether the transfer of the two suits to this Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 is valid. The answer to this question will depend on the jurisdictional value of the two suits. It is undeniable that taken individually and irrespective of the consideration arising from consolidation of suits and submission of counter-claim in one suit, the suits are manifestly valued at less than rupees ten lacs each. That being so, they are triable by Special Court as defined by section 2(f)(i) of the Ordinance and their transfer to the High Court is not , warranted or called for by any provision of the Ordinance.

13. It is unquestionable that by mere submission of a counter-claim in a suit or by virtue of consolidation of one suit with another its jurisdictional value does not undergo any change so as to receive accretion thereby. No provision or principle of law has been cited to the contrary.

14. In the above view of the matter, the two suits alongwith the counter-claim shall have to go back to the Special Judge (Banking) (Special Court set up under section 2 (f )(i) of the Ordinance) for disposal according to law.

15. Before parting with the case it remains to be observed that on the view I have taken of the matter in hand I do not feel called upon to deal with the question of maintainability or otherwise of the counter-claim and thus to forestall a decision on this point by the Special Judge (Banking).

16. As regards the request for transfer of the suit by virtue of power exercisable by the High Court under Article 203 of the Constitution of Pakistan suffice it to say that I am seized of the suits as a Special Court as provided by section 2(f )(ii) of the Banking Companies (Recovery of Loans) Ordinance, 1979 and that being so the jurisdiction of the High Court under Article 203 ibid has hardly any relevance.

17. In view of the foregoing discussion the contentions of the learned counsel for defendant No. 1 being without force the objection raised by the learned counsel fur the plaintiff as supported by the learned counsel for the other defendant is sustained and both the suits are remitted back to the Special Judge (Banking), Lahore, for adjudication in accordance with law. MBA. Order accordingly.