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Petitioner: Messrs AZIZ FLOUR MILLS And 2 Others VS Respondent: The INDUSTRIAL DEVELOPMENT JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Nazir Akhtar, Ihsan-ul-Haq Chaudhry, Ihsanul Haq Chaudhry Title:Messrs AZIZ FLOUR MILLS And 2 Others vs The INDUSTRIAL DEVELOPMENT
JUDGMENT
Reported As: 1990 CLC 1473 Result: Appeal dismissed Judgment JUDGMENT IHSAN-UL-HAQ CHAUDHRY, J.--This is an appeal by the defendant/appellant against order dated 14-5-1988. The relevant facts are that the respondents instituted a suit for recovery of Rs. 23,83,893 before the Special Judge Banking, Lahore. The notices were issued to the appellants for 28-2-1982. They entered appearance and submitted an application on 21-2-1982 under Order XXXVII Rule 3 (1) for leave to appear and defend the suit. The parties appeared on 28-2-1982. The learned Special Judge Banking was apprised that another suit was going on between the parties, therefore, this suit was adjourned to 26-4-1982. It was recorded on this date that the file had not been received and suit was adjourned to 31-5-1982 for further porceedings and from that date to 29-6-1982 for the same purpose. However, on the said date the suit was dismissed under Order IX, Rule 8, C.P.C. The respondent submitted an application under Order IX, Rule 9 read with section 151, C.P.C. On 21-7- 1982. The same was, however, placed before the learned Presiding Officer on 9-9-1982 when notices were ordered to be issued to the other party for hearing at Multan. The appellants contested this petition and before this application could be disposed of, the law was amended. The result was that all matters pending before the Special Judge Banking and involving amount of over one million rupees were ordered to be transferred to this Court. Thereafter this petition came up for consideration before the learned Single Judge in Chamber. The petition was allowed vide order dated 14-5-1988, after hearing the learned counsel for the parties. It is this order which is subject- matter of this appeal. 2. The appeal was admitted to regular hearing and notice issued to the respondent, who has entered appearance and contested the appeal. We have heard the learned counsel for the parties.
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The arguments addressed by learned counsel for the appellants in support of the appeal can conveniently be divided into two sets namely:-- (i)attacking the petition for restoration, proceedings thereon and order of restoration; and (ii)maintainability, competency and merits of suit. The following points are covered by first category:- Firstly, that the Bench of Lahore High Court at Multan has no jurisdiction to hear and decide the application for restoration of the suit. The matter should have been dealt with either at principal Seat or at Bahawalpur Bench of the High Court. 1t could not have been sent to Multan without obtaining judicial order to this effect; Secondly, that the petition for restoration was hopelessly time-barred and the respondent manoeuvred to bring it within limitation. In this behalf reliance is placed on the case of A & B Oil Industries Ltd., Karachi v. Government of Pakistan (PLD 1975 Karachi 439); Thirdly, that the petition under Order IX, Rule 9 was not competent as the respondent plaintiff had pleaded that it's representative was present on 29-6-1982. The argument is that when the plaintiff was represented then in case of dismissal of suit the application for restoration did not lie. In this behalf reference was made to PLD 1954 Baghdad-ul-Jadeed 60; Fourthly, that neither the petition was moved by a competent person as according to the learned counsel for the appellants Abdul Aziz alleged officer of the Bank had no authority, whatsoever, to move the petition nor the same was signed or verified as required under Order IV, C.P.C., therefore, this was no application in the eyes of law. In this behalf reference is made to cases reported as PLD 1974 Lahore 173, PLD 1966 Baghdad-ul-Jadeed 27, PLD 1975 Karachi 182 and Alamgir and 8 others v. Nasir Ali and 8 others (1981 CLC 375); Fifthly, that the affidavit of the learned counsel for the plaintiff in support of the application was vague, purposeless and inconsequential. Similarly, the affidavit of Abdul Aziz, so-called Bank Officer was of no help to the plaintiff. If these affidavits are excluded from consideration then there wits nothing on record to support the application for restoration. The petition cannot be granted as a matter of grace. In this behalf reliance is placed on the cases of V. Manickam Pillai v. Mahudam Bathummal and others (1925 Madras 209), Tariq Jaffer v. National Bank of Pakistan and others (1987 CLC 2312), Muhammad Ghazanfar v. Ali Haider (1979 CLC 84), A & B Oil Industries Ltd., Karachi v. Government of Pakistan and 3 others (PLD 1975 Karachi 439) and Khan Bahadur H.M. Habibullah v. Sheikh Mahboob Alam [PLD (W.P.) Karachi 143]; Sixthly, that the plaintiff is a corporate body and it can only function strictly in accordance with the provisions of law under which it was constituted. The argument is that Board constituted under section 13 of the I.D.B.P. Ordinance 31 of 1961 never authorised the filing of the petition for restoration and Abdul Aziz in any case was not authorised person. It is added that unconcerned persons cannot institute suits, petitions etc. In this behalf reliance was placed on the cases reported as Ma Gyi and others v. Pat Lon (AIR 1917 Lower Burma 36), 1980 CLC 1375 (1382) and 1980 CLC 1932; Seventhly, that Abdul Aziz was not competent to institute the petition. In this behalf reference is made to Order XXIX, C.P.C. It is added that action must be initiated on behalf of Company by the Authority in whom management vests; Eighthly, that there are no allegations in the petition that the Bank has instructed to file this petition. In this behalf reference is made to provisions of Order 111, Rule 2, Order VI, Rule 14 and case reported as 1981 CLC 375; Ninthly, that the learned Single Judge committed an error while deciding the petition summarily. It is maintained that this was not possible according to law as the defence pleas required framing of issues and recording of evidence before the decision of the petition; and Tenthly, that the learned Single Judge in chamber wrongly concluded that it was not a date of hearing. It is added that terms `further proceedings and "proper proceedings quite different and distinct in their import. It was a date of hear in and reliance is placed on the cases of Mst. Ghulam
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Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lahore 412), Muhammad Hanif v. Province of Punjab through Director of Education, Lahore Region, Lahore and another (PLD 1981 Lahore 95), Allah Ditta v. Aziz Din (PLD 1981 Lahore 508), Mst. Barkat Bibi and others v. Fateh Ali and others (PLD 1949 Lahore 432), Khan Bahadur H.M. Habibullah v. Sheikh Mehboob Alam PLD 1959 (W.P.) Karachi 143 , Zafar Ali Khan and 6 others v. Haji Muhammad Zaman (PLD .1981 Peshawar 151) and Mst. Akhtar Begum v. Muhammad Hussain and another (1981 CLC 146). In the alternative it is argued that if it was not a date of hearing then there could not have, been a petition for restoration of the suit. 3.On the other hand, the learned counsel for the respondent has raised following preliminary objections:- (i)That the appeal is not competent against an interlocutory order. It is argued that the appeal can be maintained as per Section 12 of the Ordinance when through the order or judgment the whole matter is decided and not otherwise. It is added that the legislature in its wisdom has promulgated the Special Act to deal with the matters summarily and speedily. It is submitted that if section 7 (1) and proviso to section 12 are read together then it is clear that the interim orders of this nature are not open to challenge in appeal. It is added that word 'case' used in the section 12 is much limited in scope than the same word used in section 115, C.P.C. It is explained that by adding proviso the scope of word `case' has been curtailed and limited. In this behalf reliance was-placed on the judgment in case of Muhammad Ayub Butt v. Allied Bank and another PLD 1981 S.C. 359; Crescent Factories Vegetable Ghee Mills and 5 others v. N.B.P. And another (PLD 1985 Lahore 150), Bank of America v. Alam Brothers and 6 others (1984 CLC 3393) and Oriental Fashions Ltd. And 4 others v. National Bank of Pakistan PLD 1985 Karachi 178); (ii)That C.P.C. As it is was not applicable to' the proceedings before the Tribunal constituted under Banking Recovery Ordinance: In this behalf reference is made to section 3, section 7, section 11 and section 12 of the Ordinance and section 4 and Order XXXVII of C.P.C. The objection in nutshell is that although the Tribunal can press into service the procedural and enabling provisions yet it cannot resort to the penal provisions. It is concluded that the Special Judge Banking had no jurisdiction to dismiss the suit for non-prosecution and this error of jurisdiction could be corrected under inherent powers as well as under section 21 of the General Clauses Act. 4. The learned counsel for the appellants in reply to the preliminary objections has argued that the word `case' is were enough to cover within its folds the decision on applications as well. It is added that so far as the application is concerned the impugned order is the end-product. The learned counsel in this behalf has relied on the cases of Buddhoo Lai and another v. Mewa Ram (AIR 1921 Allahabad 1), Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 SC 507), Nazeer Ahmad v. Additional District Judge, Muzaffargarh, and others (1983 CLC 113), Messrs Gupta & Co. v. Messrs Kirpa Ram Brothers (AIR 1934 Allahabad 620), Muhammad Ismail v. District Judge, Sargodha and 4 others (1981 CLC 361), Chautala Workers Co-operative Transport Society Ltd. And another v. State of Punjab and others (AIR 1962 Punjab 94), Mt. Golab Kucr and another v. Mt. Bibi Saira and others (AIR 1919 Patna 372) and Sakhawat Ali and another v. Mst. Shui Khelay (PLD 1981 SC 454). It is in reply to the other objection, argued that the C.P.C. Is applicable to the suits under the Banking Companies (Recovery of Loans) Ordinance, 1979 as is clear from Sections 3, 6 and 7 of the Ordinance and Section 4 of the C.P.C: 5. On merits it was argued on behalf of the plaintiff that when the orders dated 28-2-1982, 26-4- 1982, 31-5-1982 and 29-6-1982 are read together then the a irresistible conclusion is that the suit was not fixed for any definite proceedings rather the learned Banking Judge was not sure of the next step in the proceedings. Therefore, 29-6-1982 cannot be termed as a date of hearing by any stretch of imagination and as such the suit could not have been dismissed for non---prosecution.
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In this behalf reliance is placed on the decision of Hon'ble Supreme Court in the case of Manager Jammu & Kashmir State Property v. Khuda Yar and another (PLD 1975 S.C. 678). 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; (i.e)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;
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(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. 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 (PLD 1981 Lahore 508). If the same is minutely gone
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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
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reliance is placed on the cases of Shuja-ul-Mulk v. Firm Abdul Ghafoor-Abdul Qadim (PLD 1964 (W.P.) Peshawar 110), Mst. Murad Khatoon v. Mst. Fattal (PLD 1950 Baghdad-ul-Jadid 98), S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 (W.P.) Karachi 149), Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (PLD 1970 SC 288), Abdul Shakoor v. Abdul Rasool (PLD 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 AIR 1931 Allahabad 294, Mst. Razia Begum v. Chairman, Intermediate and Secondary Board, Mirpur (1979 CLC 288), Baijnath v. Ram Narain and others (AIR 1941 Oudh 367) and Krishna Saroop v. Raj Bahadur Singh (AIR 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;…
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