MUHAMMAD AYUB BUTT vs ALLIED BANK LTD., PESHAWAR AND Oti113rs

ORDER

1. NASIM HASAN SHAH, J.-This order will govern Civil Petitions Nos. 55-P/81 to 62-P/81, as the questions arising for decision in all these matters are common and the parties to the proceeding also are the same.

2. The relevant facts are that in 1977, the Allied Bank of Pakistan instituted 8 suits for the recovery of different sums of loan ftom the defendants therein. On 30-7-1977, the Bank applied to the Court for permission to the sale of goods of the defendants which was lying as security. This application was contested by the present petitioner on the ground that it was not maintainable. No orders had yet been passed on these applications for granting permission for sale of goods when, on the 27th March, 1979, the Banking Companies (Recovery of Loans) Ordinance XIX of 1979 was promulgated.

3. As a result thereof, all the pending cases were transferred to the Special Court established under .

4. The said Ordinance. Sometime in 1980, the petitioner, who was the guarantor for the loan, learnt some that the goods lying as security, have already been sold by the Bank without any formal permission of the Court concerned. He, therefore, submitted eight applications in the eight cases pending before the Special Court for dismissal of the suits on the grounds that there has been illegal conversion of the pledged goods on the part of the Allied Bank by selling them without permission of the Court, lack of notice to the defendants in the suit and that the Bank having opted to retain the goods as collateral security could not have proceeded to sell them. The learned Special Judge Banking N.-W. F. P. By a well-reasoned order passed on 15-3-1981, dismissed all the eight applications. Eight revision petitions were, therefore; submitted by the petitioner under section 115 of the Civil Procedure Code to challenge the said orders of the Special Judge Banking in the Peshawar High Court, Peshawar, which were heard by a Division Bench of the said Court and dismissed by order dated 6-4-1981.

5. The learned Judges of the Peshawar High Court, after outlining the scheme of the Ordinance, came to the conclusion that the Special Court established thereunder was a persona designate. As for the effect of the provisions of section 3 of the Ordinance, which states :- "The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force." it was observed that they did not enable the petitioner to file a revision petition under section 115 of the Civil Procedure .Code because section 11 of the Ordinance conferred the finality upon the orders of the Special Court. This provision is to the following effect :- "Subject to the provisions for appeal in section 12, no Court or other authority shall call or permit to be called in question any order, judgment or sentence of a Special Court of the legality or propriety of anything done or intended to be done by the Special Court under this Ordinance."

6. Furthermore, section 12, which deals with the appeals, clearly barred in appeal from an interlocutory order which did not dispose of the entire case m the Special Court, as is evident from the relevant part of the provision, which is reproduced below "(1) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence is passed: Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court."

7. The learned Judges held that the High Court was only invested with the limited powers of entertaining an appeal against a final judgment and decree of the Special Court and that too when the petitioner deposits in cash with the High Court an amount equivalent to the judgment debt or if the High Court Orders that instead the appellant should furnish security equal to the decretal amount. It was observed that "the whole scheme and purpose of the Ordinance, as is evident, is that the suits of that nature covered by it are to be disposed of expeditiously though with a right of the appeal to the High Court but against the final decision and not from interlocutory orders". The conclusion to which the Court arrived at was that since the Civil Procedure Code was applicable only subject to the provisions of the Ordinance, the provisions of section 115 of the Civil Procedure Code were not available keeping in view the Scheme as well as the terms of the Ordinance. Accordingly, the revision petitions were held to be incompetent and were dismissed.

8. Hence these petitions for leave to appeal.

9. It may further be observed in this connection that according to section 3 the provisions of the said Ordinance shall be in addition to and save a hereinafter expressly provided not in derogation of any other law for the time being in force. The words hereinbefore underlined* clearly show that in case of any inconsistency between the provisions of the Ordinance and those of other laws the former shall prevail. It has been seen that section 11 of the Ordinance read with section 12 thereof also come into conflict with the provisions of section 115 of the Code of Civil Procedure. Section 3 of the Ordinance, therefore, does not allow the High Court to exercise the revisional jurisdiction vesting in it under section 115 of the Code of Civil Procedure in respect of orders made by a Special Court.

10. The Lahore High Court in Azhar Hussain v. Chartered Bank Ltd. (1981 CLC 516) has also taken the same view and we consider quite rightly.

11. Moreovbr, the argument that a revision could be filed under section 115, C. P. C. Overlooks another relevant provision of the Code viz. Section 3. Section 3 of the C. P. C. Deals with the question of subordination of Courts and is in the following terms :- "3. Subordination of Courts.-For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court of grade inferior to that of a District and every Court of Small Causes is subordinate to the High Court and District Court."

12. No amendment has been made in section 3 of the Code of Civil Procedure so as to declare a Special Court also as a Court subordinate to the High Court nor is there any provision in the Ordinance to the effect that Special Court shall be deemed to be a Court subordinate to the High Court for the purposes of section 115 of the Code of Civil Procedure. In a somewhat similar situation, one of us (Nasim Hasan Shah, J. While in the High Court observed in Wajahat A.I Hasnie v. Mst.

13. Ghazala (PLD 1970 Lah.641) after quoting from a earlier decision to the effect :- "I cannot accept the broad and unqualified proposition that once it is held that an officer, authority, or functionary is exercising the functions of a Court in relation to rights that may be called "civil" that officer, authority of functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil disputes between the parties but also the income- tax authorities which determine the subject's liability to the State."

14. "I respectfully agree and may add that the words "subordinate Court" in section 115 of the Code of Civil Procedure ought to be understood in the sense given to them in section 3, otherwise the words `for the purpose of this Code' would be rendered useless. Since section 3 is enacted for the purposes of the Code and deals with all the civil Courts and their subordination to one another the inference appearsto be irresistible that no Court other than that mentioned in it can be said to be subordinate to the High Court within the meaning ofsection 115 of the Code of Civil Procedure."

15. "A Court which is inferior in rank to the High Court is treated as subordinate to it for purposes of exercise of revisional jurisdiction only if it has been declared subordinate to it by a statutory provision."

16. We think that the principle enunciated in the above case is also applicable in the present situation.

17. Even if a Special Court is treated as a Court subordinate to the High Court, it would not advance the case of the petitioner. The Ordinance is a special law. Section 4 of .The Code of Civil Procedure provides that in the absence of any specific provision to the contrary nothing in this Cod shall be deemed to limit or otherwise affect any special or local law p.m in force or any special jurisdiction or power conferred or any special for of procedure prescribed by or under any other law for the time being in force. Undoubtedly, a Special Court is a Court of special jurisdiction and sections 11 and 12 of the Ordinance preclude the High Court from exercising its revisional jurisdiction qua the orders of the Special Court. It would, therefore, follow that in view of the provisions of sections 11 and 12 of the said Ordinance read with section 4 of the Code of Civil Procedure the orders of the Special Court cannot be assailed before the High Court in revision by resorting of the provisions of section 115, , C. P. C. This aspec of the case has also been considered by one of us (Nasim Hasan Shah, J. In Wajahat A.I Hasnie's case and the relevant observations are a follows "The object of this Act is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions of the Act the Family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case, vide section 14 of the Family Courts Act. But merely because of this subordination to the High Court it does not automatically follow that the orders passed by such a Court become revisable by the High Court. The revisional power is contained in section 115 of the C. P. C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure does not as provided in section 4 override any special or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given their full effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of the Family Court from the operation of section 115, C. P. C. And the said provision of law is not available for obtaining revision of orders passed by the Family Courts. In somewhat similar, circumstances, in the case of Hafeez Ahmed v. Barkat A.I PLD 1955 Lah. 629 Mr. Justice B. Z. Kaikaus also took a similar view."

18. The overall conclusion, therefore, is that the provisions of section 3 of the Ordinance relied upon by the learned counsel for the petitioner contending that the provisions of section 1,15 of the C. P. C.

19. Can be availed of cannot, therefore,, be accepted.

20. The result is that there is no force in these petitions which are dismissed hereby.