Messrs MAKRAN FISHERIES (PVT.) LIMITED vs PLATINUM CO.

ORDER

1. ' RAHMAT HUSSAIN JAFFERI, J.---On 2-7-2001, the plaintiff filed the suit for cancellation of documents, permanent injunction and damages before the Banking Court under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Just after one month, on 30-8-2001 the said Act was repealed by Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the Ordinance, 2001). Therefore, the suit proceeded under the Ordinance, 2001 by virtue of its section 7(6) and (7). On 7-12-2004. The suit was dismissed for non- prosecution, as the plaintiff and his Advocate were absent. On the next day viz. 8-12-2004, the plaintiff filed the present application under Order IX, rule 9 read with section 151, C.P.C. For recalling the said order on the ground that due to oversight the plaintiff s Advocate could not notice the suit in the cause list, therefore he did not inform the plaintiff, hence they did not appear before the Court. The defendant after service filed a counter-affidavit challenging the assertions of the plaintiff. The plaintiffs filed the rejoinder.

2. ' I have heard the parties' Advocates. The learned Advocate for the plaintiff has stated the same facts as mentioned in the application. The learned Advocate for the defendant has stated that the application is not maintainable in view of sections 22 and 27 of the Ordinance, 2001 and that the plaintiff has not shown sufficient cause for his and his Advocate's absence. In reply, the learned Advocate for the plaintiff has stated that section 27 of the Ordinance, 2001 is not applicable but the C.P.C. Would be applicable therefore, the application is maintainable.

3. ' In order to understand the legal position sections 22(1) and 27 are reproduced:-- "22. Appeal.---(1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by the Banking Court may, within 30 days of said judgment, decree, sentence or final order prefer an appeal to the High Court.

27. Finality of order.---Subject to the provisions of section 22, no Court or other authority shall revise or review or call, or permit to be called, into question any proceedings, judgment, decree, sentence or order of the Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance: ' Provided that the Banking Court may, on its own accord or on application of any party, and with notice to other party or, as the case may be, to both the parties, correct any clerical or typographical mistake in any judgment, and decree, notice or order passed by it."

4. It will be noticed that section 27 has been made abject to section 22, under which an appeal is provided again final order of the Banking Court. Under section 7(2) of the Ordinance, 2001, the Banking Court has been allowed to follow the procedure as laid down in C.P.C. For which no procedure has been provided under the Ordinance, 2001. As such if procedure to deal with the matter has been provided under the Ordinance, 2001, then the procedure of C.P.C. Is not required to be followed. Under section 22, final order of the Banking Court is appealable therefore, the procedure has been provided in the Ordinance, 2001 to deal with the final order as such the procedure laid don n in the C.P.C. Is not applicable.

5. ' In the present case, by order dated 7-12-2004, the Court has finally disposed of the suit as dismissed or non-prosecution. As such after passing such order, the suit is no more pending before the Banking Court. Hence, it is a final order in respect of the parties concerning the suit. Therefore, the same should have been challenged before the Appellate Court and not before this Court. Thus, the application is not maintainable therefore it is dismissed.