2003 PLP 116 (SCMR)

3. It is mainly argued by Mr. S. Iqbal Haider, learned Advocate Supreme Court on behalf of petitioner that the provisions as contained in section 22(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 have been misinterpreted and misconstrued which resulted :n serious miscarriage of justice. It is contended that no stay of execution of money decree can be granted without affording proper opportunity for 1lcaring to the decree‑holder which has not been done resulting in serious prejudice and injunctive order has been confirmed without having gone trough the entire record of the case. It is also argued that appeal has been, admitted to regular hearing without giving any cogent reasoning with the direction that interim relief granted shall remain intact. It is urged with vehemence that the order dated 3‑1‑2002 passed by learned Single Bench whereby leave to defend the suit was disposed of is merely an interlocutory order and thus is not appealable because the main suit is pending adjudication. It is next contended that the interim order dated 3‑1‑2002 cannot be equated with that of a decree and, therefore, it cannot be assailed by way of appeal in view of the relevant provisions as contained in Ordinance XLVI of 2001 which imposes specific bar on filing an appeal from an interlocutory order. It is also contended that under section 22(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, execution of money decree cannot be stayed without hearing the decree‑holder and without requiring the judgment‑debtor to deposit the decretal amount and costs. It is further argued that under section 22(6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 no appeal, review or revision against the order accepting or rejecting an application for leave to defend the suit can be filed and the impugned order had been passed in violation thereof. It is contended time an again that appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 could only be filed against final judgment, decree, sentence or final order which aspect of the matter has been ignored by the learned Division Bench.

4. Ch. Mushtaq Ahmed Khan, learned Advocate Supreme Court appeared on behalf of respondents and vehemently opposed this petition and challenged its maintainability on the ground that impugned order is an interim order simpliciter which cannot be assailed before this Court as appeal is yet to be decided by the learned High Court and all the contentions agitated before this Court can be raised before the High Court. It is further submitted that the order dated 3‑1‑2002 passed by learned Single Judge in Chamber directing to furnish cash security or bank guarantee has been passed in violation of the provisions as contained in section 10 of the Financial Institutions. (Recovery of Finances) Ordinance, 2001 and is not sustainable.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also gone through the order dated 3‑1‑2002 passed by learned Single Judge in Chamber and order dated 24‑4‑2002 passed by learned Division Bench of Lahore High Court, Lahore. The impugned order dated 24‑4‑2002 is reproduced hereinbelow for ready reference:‑‑ "After hearing the learned counsel for the parties, we are of the view that there are certain legal questions pertaining to law and facts which require examination, therefore, we admit the instant appeal for regular hearing. (2) Syed Iqbal Haider, Advocate appearing on behalf of the respondents accepted notices on their behalf, therefore, formal notices need not be issued to them. (3) However, the objection raised by the learned counsel for the respondent regarding maintainability of the appeal shall be taken up at the stage of final arguments of appeal. (4) The interim relief already granted shall continue."

6. A perusal of the said order would reveal that appeal has been admitted for regular hearing in view of certain legal questions concerning law and facts but the objection regarding maintainability of appeal made by Mr. S. Iqbal Haider, learned Advocate Supreme Court on behalf of petitioner before High Court is yet to be decided. It further transpires from the secrutiny of impugned order that it is an interim order which cannot be equated with that of a judgment which must fulfil the following three conditions:‑‑ (a) It should terminate proceedings in the High Court. (b) It should determine the rights and liabilities of the parties. (c) The determination of the rights and liabilities as envisaged in (b) above should ‑be on merits and should further be final and conclusive so as to cover the entire range of substantive rights and liabilities which formed the subject‑matter of real controversy in the suit proceedings which initially gave rise to the dispute. (AIR 1963 AP 9, AIR 1961 All. 245, 1960 All W.R.H.C. (5), ILR (1960) 2 All. 917, AIR 1953 Sau. 166, AIR 1958 All. 800, AIR 1957 All. 116 and AIR 1951 Pat.25).

7. The appeal preferred on behalf of respondent is pending adjudication and determination of the rights and liabilities is yet to be made and thus. all the contentions as mentioned hereinabove could very conveniently be agitated before the Division Bench where the matter is pending at the moment. In our considered opinion this petition has been filed at premature stage as no verdict on the question of maintainability of appeal has been given. It is well‑entrenched legal position that entertainment of petition against interim order and hearing of case piecemeal, is not considered desirable. In this regard we are fortified by the dictum as laid down in cases titled Said Khan v. Aya Khan (1979 SCMR 577), Zafarullah Khan v. Abdul Rehman (1971 SCMR 702), Amir Khan v. Fateh Khan (1978 SCMR 334). The question as to whether leave to appear and defend should have been granted by imposing a condition as has been done by the learned Single Judge by means of order dated 3‑1‑2002 can be dilated upon and decided by the learned High Court in the light of principles as enunciated by this Court in the following cases and the objects and reasons for the promulgation of relevant financial enactment:‑‑ (1) Rafique Saigol v. Bank of Credit and Commerce (PLD 1996 SC 749). (2) Fine Textile Mills Ltd v. Haji Umer (PLD 1963 SC 163), (3) Abdul Karim Jaffarani v. United Bank Ltd. (PLD 1981 SC 106), (4) Abdul Rauf Ghauri v. Mst. Kishwar Sultana (1995 SCMR 925), (5) Karim v. Ziker Abdullah (1973 SCMR 100), (6) Abdul Majeed v. UBL (1984 SCMR 1435), and (7) Ark Industrial Management Ltd. v. Habib Bank Ltd (PLD 1991 SC 976).

8. In our considered opinion the contentions as agitated on behalf of the petitioner are convincing and need serious consideration but at this stage we are not persuaded to make any interference as the appeal of respondents is still pending adjudication on the merits in the High Court and question of maintainability whereof is yet to be decided.

9. In such view of the matter the petition is dismissed. However, it shall open to the petitioner to agitate all the said contentions before the learned High Court at the time of arguments. The learned High Court is also directed that the appeal shall be disposed of preferably within a period of six weeks in view of the overall object envisaged by the Legislature for the expeditious dispensation of justice in such‑like cases. Q.M.H./M.A.K./U‑23/S Petition dismissed.