HAFIZ BROTHERS (PVT.) LTD and others vs Messrs PAKISTAN INDUSTRIAL

' CH. MUHAMMAD ARIF, J.---All the petitioners remained unsuccessful before the High Court of Sindh, Karachi, in their I.A. No,47 of 1993 laying challenge to orders dated 1-6-1996 of Banking Tribunal No,1, Karachi, hereinafter referred to as the Tribunal, praying for setting aside ex parte decree dated 10-1-1994 and halting execution thereof. The appeal was filed under section 9 of the Baking Tribunals Ordinance (No, LVII of 1984) and petitioners' case before the High Court was that the respondent Messrs Pakistan Industrial Credit and Investment Corporation Ltd., Karachi, hereinafter referred to as PICIC, filed the suit against them for recovery of Rs, 1,39,94,111 and for a final decree for sale of mortgaged properties and PICIC certificates of deposit pledged with them.

On failure of the petitioners to appear before the Tribunal in spite of service of. Summons, the suit was decreed. The PICIC filed an execution application and in response to notices issued, they appeared before the Tribunal and moved an application for setting aside ex parte decree dated 10-1-1994. The PICIC contested this application as also another, filed by the appellants Nos.1 to 4 herein, challenging ex parte decree of the Tribunal against appellant No,5(i), (ii) and (iii) on the ground that the said Mst. Anayat Begum had expired before the institution of the suit and according to the provisions of Order XXII, C.P.C., a suit against a dead person is a nullity and no decree can be passed against such person.

2. The learned Division Bench of the High Court came to the conclusion that issuance of process by the Tribunal did not fall short of the requirements to score them (1) through the District Judge, Rahim Yar Khan, (2) by registered post A/D and (3) by publication of the summons in Daily-Dawn.

As regards the contention of the petitioners that on account of the death of Mst. Inayat Begum, the very basis of the suit of PICIC had disappeared, it was observed that the objection was well-taken, the suit against her was incompetent and "...The decree passed therein would be nullity only against her Further the question whether the judgment/decree to her extent would be competent or otherwise against her heirs who had been joined as defendants, would be decided only after consideration of the nature of the obligations and liabilities of the deceased-Mst. Inayat Begum, towards PICIC for repayment of the loan in question. The la t paragraph of the impugned judgment dated 11-7-1997 reads thus: ' "Accordingly, we admit this appeal to regular hearing as we had put the parties on notice that the appeal upon hearing the learned counsel for the parties could be admitted and disposed of on merits. The matter is remanded to the Banking Tribunal No,1 with the directions to modify the judgment and decree by deleting the name of Mst. Inayat Begum and to examine whether the heirs of deceased Mst. Inayat Begum were validly joined and a valid decree could be made against them. The appeal stands disposed of in the above terms. The C.M.A. No,634 of 1995 stands dismissed as having become infructuous."

3. Hence this petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

4. We have heard Ch. Muhammad Ashraf, learned Advocate Supreme Court for the petitioners and Syed Hamid Ali Shah, learned Advocate Supreme Court, who has entered appearance in response to order dated 7-10-1998, on behalf of the respondent-PICIC.

5. Ch. Muhammad Ashraf, learned counsel for the petitioners has objected to the alleged failure on the part of the Tribunal to issue process against his clients in accordance with the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (No,XV of 1997). According to him, the Tribunal at Karachi was not at all possessed for jurisdiction to try the case as the petitioners are residents of Rahim Yar Khan. Moreover, the institution of the suit by PICIC against the deceased Mst. Inayat Begum was sans legal basis and the proceedings and their conclusion, including passing of the decree, going ahead with the execution thereof and sale of the properties of petitioners Nos.1 to 4, are liable to be reversed.

6. Contrarily, -Syed Hamid Ali Shah, learned Advocate Supreme Court, appearing for PICIC, has supported the impugned judgment dated 11-7-1997. He contended that the provisions of 1997 Act were not applicable as the matter was brought before the Tribunal by the PICIC under the Banking Tribunals. Ordinance (No, LVIII of 1984) read with the Banking Companies (Recovery of Loans) Rules, 1980. The plea raised by the learned counsel for the petitioners regarding lack of jurisdiction of the Courts at Karachi was repelled on merits as well as on the plea that no such question was raised by the petitioners before either the Tribunal or the High Court.

7. We have considered the arguments addressed by the learned counsel for the parties and are not inclined to the view that the petitioners have made out a case for interference in the impugned judgment dated 17-7-1997. The learned Division Bench of the High Court specifically upheld the findings of the Tribunal to the effect that petitioners had been served in accordance with law and the then Rules. The case of Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited (PLD 1990 SC 497) was also correctly pressed into service for the proposition that in the matter of effecting service on the defendants in cases before the Banking Tribunals established under Ordinance (No, LVIII of 1984) any one of the modes in Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 does not suffer from any taint in law.

8. There is no cavil with the proposition that the institution of legal proceedings against dead person is of no avail to the concerned litigant. The learned High Court rightly came to the conclusion that the suit of PICIC against deceased-Mst. Inayat Begum was incompetent and, therefore, a nullity in law. However, the remand of the matter by the High Court to the Tribunal "...With the directions to modify the judgment and decree by deleting the name of Mst. Inayat Begum and to examine whether the heirs of deceased Mst. Inayat Begum were validity joined and a valid decree could be made against them..." takes good case of the petitioners in that behalf.

8. The plea that the Courts at Karachi do not possess original jurisdiction to deal with the cases under the Ordinance of 1984, should not detain us any longer. It is not the case of the petitioners that respondent PICIC had not filed the suit against the petitioners without alleging that cause of action had accrued in their favour against the petitioners within the territorial jurisdiction of the Tribunal. We find that the petitioners had not objected to the territorial jurisdiction of the Tribunal either in the memorandum of appeal before the High Court or even during the course of arguments leading to the passing of the impugned judgment dated 17-7-1997 that being the position, there is no force in this assertion of the petitioners, either.

9. Looked at whatever angle, the instant petition is without any merit and is liable to be dismissed.

So, be it. Leave is refused.