Messrs MUSLIM COMMERCIAL BANK LIMITED vs TAHIR EDIBLE OIL (PVT.) LTD.

(a) ' MUSHEER ALAM, J.--- Through this judgment, we intend to dispose of High Court Appeal No,28 of 2001 (viz. Muslim Commercial (Bank Ltd. v. Tahir Edible Oil (Pvt.) Ltd. And 3 others) and High Court Appeal No,41 of 2001 (Tahir Edible Oil (Pvt.) Ltd. v. Pan Centuary Edible Oils SDN BHD and 3 otheRs, Both the appeals arise out of an order dated 29-1-2001 passed by learned Judge in Chamber on an application under Order 39, rules 1 and 2, C.P.C. (C.M.A. No,3887 of 2000) filed in Suit No,736 of 2000.

(b) ' Briefly the facts relevant for the purpose of disposal of these appeals are that Messrs Tahir Edible Oil (Pvt.) Ltd. Opened a Letter of Credit through Muslim Commercial Bank Limited for the import of RBD Palm Oil alleged to be purchased from Pan Centuary Edible Oils Kuala Lampur. It appears that some dispute arose between the buyers and sellers regarding the quality, quantity and condition of Letter of Credit. Plaintiff in suit prayed for the following reliefs.

(c) Since the Letter of Credit was conditional and was accepted unconditionally by the defendants 1 and 3, the terms and conditions of the said Letter of Credit were binding on the parties and amounts to an agreement between the parties.

(d) That the defendant No,4 was not liable to pay any amount to the defendant No,1 and/or 3 unless the funds are paid to the defendant No,4 by the plaintiff.

(e) That the defendant No,4 being the banker of the plaintiff having established conditional Letter of Credit is bound to follow instructions of the plaintiff and return the documents to the defendant No,3.

(f) Restrain the defendant No,4 from making any payment to the defendant No,3 against the conditional Letter of Credit established by the defendant No,4 on instructions of the plaintiff.

(g) Direct the defendant No,4 to return the documents of the imported consignment to the defendant No,3 immediately.

(h) ' Said suit is being seriously contested and the defendant therein i,e, M.C.B. (the appellant in High Court Appeal No,28 of 2001), in its counter-affidavit to the injunction application also disclosed that the recovery Suit being No,1689 of 2000 against Messrs Tahir Edible Oil (Pvt.) Ltd. Is already pending in the Banking Court and so also filed an application under Order 7, rule 11, C.P.C.

1. Challenging original civil jurisdiction of this Court. However, the learned Single Judge instead of first deciding the issue of jurisdiction, heard the application under Order 39, rules 1 and 2, C.P.C. (C.M.A.

2. No,3887 of 2000), inter alia seeking restraining orders against the M.C.B. From making payment to Pan Centuary Edible Oils. (the seller) against the Letter of Credit and further for return of documents and passed the following orders:--

(i) ' C.M.A. No,3887 of 2000 is an application under Order 39, rules 1 and 2, C.P.C. In this application the plaintiff has prayed that the defendant No,3 not be made any payment by the defendant No,4 in connection with the Letter of Credit established by the plaintiff through defendant No,4 in favour of the defendant No,1 .

(j) ' For the reasons to be recorded later on the defendant 'No,4 is directed to make payment to defendant No,3 within 2 weeks and the oil so available is to be sold by the Nazir of this Court who shall take custody of the same, the amount so realized shall be kept by him and invested till the disposal of the suit.

(k) ' It was inter alia contended by Mr. Sohail Muzaffar, that the order is beyond the purview of the relief claimed in the injunction application.

(l) ' Mr. Rizwan Siddiqui, contended that suit arising out of a Banking transaction was not maintainable on the original side of thi3 Court and the same ought to have been returned for filing before the competent Banking Court. He cited the case of Qatar Airways PLC v. ANZ Grindlays Bank 2000 CLC 1455 and Mst. Yasmeen Nizhat v. National Bank of Pakistan PLD 1998 SC 391.

(m) ' We have heard the arguments and perused the record.

(n) ' Record shows that application under Order 7, rule 11, C.P.C. Dated 27-11-2000 was filed even before the counter-affidavit to the injunction application. It is settled proposition of law that once challenge to the jurisdiction is raised, then before embarking on merits or taking any decision in the matter, the Court as a rule of propriety should first decide the question of its jurisdiction . In the case of Asadullah Rashid v. Muhammad Munir 1998 SCM R 2129 where the High Court, in a service matter, admitted a writ petition, and so also suspended the orders impugned therein, inter alia; on the ground of mala tide and having being passed on political consideration, the admission order was set aside, petition was remanded for decision first on the question of jurisdiction. At page 2132, the apex Court held "Before taking any decision regarding admission of the writ petition and or passing orders granting interim relief, the High Court will first decide the question of its jurisdiction in view of the provision of Article 212 of the Constitution and in the light of judgments of this Court on the point involved".

(o) ' Said rule of propriety is fully applicable in all cases where, challenge to jurisdiction is posed, and in such situation it is incumbent upon the Court to first advert to the question of jurisdiction. It is only when the Court comes to a conclusion that it has jurisdiction it may then proceed to pass appropriate order.

(p) ' In view of the foregoing reasons impugned order is set aside with the direction that first the question of jurisdiction be decided to proceed with the suit.

(q) .