1. ' SAIYED SAEED ASHHAD, C.J.---In this Constitutional petition, the petitioner has sought the following reliefs:--
(i) Declare that the impugned order dated 8-1-1995 passed by respondent No,1 is without jurisdiction and is of no legal effect;
(ii) direct that no action will be taken against the petitioner as a consequence of the above order as the same has been passed without lawful authority and is nullity in the eye of law;
(iii) grant costs of the petition;
(iv) grant any other relief which this Honourable Court may deem fit and proper to grant in the circumstances of the case.
2. ' The brief facts of the case as available from the memo. Of petition are that respondent No,3 requested the petitioner for financial facility to the extent of Rs.32.5 million for purchase of raw material, finished goods, machinery etc. Required for completing its cassette manufacturing project. In addition to the above, the petitioner also advanced a loan of Rs.13,30,5000 to respondent No,3 for construction of factory buildings and developing other related property for the project. The above financial facilities were advanced on mark-up basis vide agreements dated 26-1-1986 and 1-11-1987. The petitioner further submitted that respondent No,3 committed breach of the above loan agreements, due to which the petitioner was constrained to call upon it to liquidate the above loan facility for which notices were served on respondent No,3 but it failed to repay the loan amount. The petitioner filed Suits Nos.78 and 143 in the Banking Tribunal, Rawalpindi for recovery of the amount while respondent No,3 filed civil suit in the Court of Civil Judge, Rawalpindi praying for a restraint order against the petitioner from taking steps to recover the loan amount. Suit filed by respondent No,3 was dismissed and against the order of dismissal appeal was filed in the Court of District Judge, Rawalpindi, which was also dismissed. During the pendency of the appeal in the Court of District Judge, Rawalpindi and the two suits filed in the Banking Tribunal, Rawalpindi, respondent No,3 filed a complaint dated 5-3-1992 before respondent No,1 alleging maladministration against the petitioner on the ground that instead of providing financial assistance as agreed upon between the parties, the petitioner adopted negative attitude and approach by instituting proceedings for recovery of the loan amount. In this complaint, respondent No,3 also made a prayer that the petitioner be restrained from charging interest/ markup on the loan advanced to it. Respondent No,1 vide order dated 22-12-1992 dismissed the complaint of respondent No,3 on the ground that the subject-matter/issue of the complaint was sub judice in appeal before the District Judge, Rawalpindi and also in the two suits filed by the petitioner in the Banking Tribunal, Rawalpindi for recovery of the loan amount. After dismissal of his complaint, respondent No,3 filed a review petition dated 22-12-1992 before respondent No,1, who by his order dated 17-10-1993 set aside his previous order dated 22-12-1992 on the ground that the subject- matter/issue of the complaint was not sub judice before the Court of competent jurisdiction and as such he had jurisdiction to proceed with the complaint, entertained the review petition and ordered that the complaint would be deemed to be alive and the parties would be heard afresh.
3. Respondent No,1 refused to entertain the objections of the petitioner that the subject-matter/issue involved in the complaint was sub judice before the Banking Tribunals, which were Courts of competent jurisdiction. Vide order dated 8-1-1995, review petition was allowed holding that he could proceed with the subject-matter/issue of maladministration and held that there was maladministration on the part of the agency i.e. The petitioner. Respondent No,1 however refrained from granting any other reliefs to respondent No,3 and observed that, if so advised, it could go to the Court of competent jurisdiction for damages or fight out the issue before the High Court and the Banking Tribunal where the cases were pending. Feeling aggrieved and dissatisfied with the above order of respondent No,1 dated 8-1-1995 passed on the review petition filed by respondent No,3 and having no other adequate, efficacious and alternate remedy, the petitioner invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan for assailing the same.
4. ' We have heard the arguments of Mr. Abdul Qadir Siddiqui, Advocate for the petitioner and Mr. S. Tariq Ali, learned Federal Counsel.
5. ' Respondent No,1 Wafaqi Mohtasib by his order dated 22-12-1992 dismissed the complaint filed by respondent No,3 on the ground that the subject-matter of the complaint was sub judice before the Courts of competent jurisdiction on the date of receipt of the complaint as such in view of Article 9(1)(a) of President Order No,1 of 1983 he had no jurisdiction to investigate or inquire into the subject-matter. Respondent No,3 filed review petition challenging the validity of the aforesaid order dated 22-12-1992. Respondent No,1 opined that his observation that in the presence of the appeal before the District Judge, he had no jurisdiction to look into the matter was an erroneous approach and it constituted an error on the face of the record which required to be recalled. On this observation, he set aside the order dated 22-12-1992 and directed fresh hearing of the complaint on merits. Subsequently, vide order dated 8-1-1995, he decided the review petition as already mentioned hereinabove. Respondent No,1 in assuming the jurisdiction in respect of the review petition did not accept the contention raised on behalf of the petitioner that the issue involved in the complaint filed before him was also in issue in Suits Nos.78 and 143 pending in the Banking Tribunal filed by the petitioner for recovery of the loan amounts/financial facilities vide agreements dated 26-1-1986 and 1-11-1987. The fact that the issue relating to the alleged maladministration/ negligence on the part of the petitioner as alleged by respondent No,3 was in issue in the above two suits is borne out from the statement made by the petitioner in paragraph 7 of the memo. Of petition wherein it has been stated that in the written statement filed by respondent No,3 he had alleged maladministration against the petitioner. Even otherwise, it is to be noted that the substance of maladministration/negligence as alleged by respondent No,3 was that the petitioner had illegally refused to allow respondent No,3 to avail of the entire loan/finance facilities and filed suits in contravention of the provisions of the loan/finance agreement. The petitioner in the plaint in Suit No,78 of 1992 stated that respondent No,3 availed of the finance facility to the extent of Rs.32.5 million but failed, refused and neglected to repay the same either within the stipulated period or thereafter. It was also stated that respondent No,3 failed to create an effective pledge of the goods for securing the finance facility in terms of the pledge agreement dated 1-11-1987. This version of the petitioner is totally different to the version of respondent No,3 that the petitioner failed or refused to disburse the finance facility as per agreement which allegation has been labelled by.
6. Them as maladministration. It is pertinent to note that respondent No,3 in their written statement while praying for dismissal of A Suit No,78 of 1992 also made a counter claim of Rs.325 million for the actual losses as well as damages for the loss of reputation and humiliation suffered by them due to the maladministration/negligent acts of the petitioner and prayed for decree in the aforesaid sum of Rs.325 million. The Banking Tribunal in deciding the suit of the petitioner would, thus, be required to consider and decide the alleged acts of maladministration and/or negligence for arriving at a just and proper decision. The Banking Tribunal would, therefore, be possessed of the issue relating to maladministration/negligence allegedly committed by the petitioner while disbursing the finance facility, charging mark-up and disguising an interest based finance facility/loan as "Bai Muajjal". There can be no other assumption except that the issue of alleged maladministration/negligence was linked with disbursement and utilization of the loan/finance facilities, charging mark-up thereon and recovery of the amounts utilized by respondent No,3 as per agreements arrived at between the parties.
7. ' If any authority is required in support of the above proposition then reference is made to the judgment in the case of Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another reported in 2003 CLD 596. In this case the Supreme Court while hearing appeals against the orders/judgments of the Banking Tribunal in respect of a claim filed before it by Banking Company in respect of a loan/finance facility was required to decide amongst other the following issues:--
(1) "Whether the Banking Tribunal could allow or grant liquidated damages?
(2) Whether the Banking Tribunal while deciding a claim for recovery of money in respect of loan/finance facility granted by a banking company to a customer could take into consideration question of mala fides raised by any of the parties to the suit?
8. ' As regards the liquidated damages, the learned trial Court had refused the same on the ground that nothing was brought on record to show that the plaintiff sustained damages on account of default of the other party and the relevant observation/pronouncement made by the Supreme Court in relation to the above was as under:-- "The liquidated damages as a rule required the positive evidence to show that the actual loss was suffered by the parties claiming the damages and even fixed amount stipulated for liquidated damages could not be recovered if the quantum of actual loss was not proved."
9. ' On the basis of the above observation the Supreme Court held that the party claiming damages was neither entitled to any interest nor to any amount of liquidated damages. From this pronouncement it is to be inferred that the Banking Tribunal had the jurisdiction to consider the issue of damages and grant the same if evidence to prove them was laid before it.
10. ' Relative to the issue of mala fides though no specific observation or pronouncement was made by the Supreme Court, it is to be observed that this issue was raised before the Banking Tribunal of which notice was taken by the Supreme Court and it nowhere held that such issue could not have been raised before the Banking Tribunal. "Mala fide" literally means in bad faith. An action taken with mala fides is an action taken maliciously for personal motives whether to hurt the person against whom action is taken or to benefit oneself. In Black's Law Dictionary, Seventh Edition, p.967, the term "mala fides" has been equated with "bad faith" and on p.134 "bad faith" has been assigned the following meanings:-- "A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, wilful tendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance."
11. ' In Ballentine's Law Dictionary, Third Edition, p.766 the term "mala fide" or "mala fides" is assigned the meaning of bad faith and the term "bad faith" is defined on p.118 as under:- "The antithesis of good faith; a state of mind affirmatively operating with a furtive design, with a motive of self-interest or for an ulterior purpose."
12. ' From the above definitions/meanings of mala fides it is to be noted that mala fides has a much wider scope and would cover within its definition the act of maladministration and negligence. If the Banking Tribunal can consider the issue of mala fides then certainly it can also go into the question of maladministration/negligence. In the circumstances. Respondent No,1 erred in holding that no sufficient material has been brought on record to adjudicate whether the issue before the Tribunal was essentially the same which was before him and some more material would be required to adjudicate upon this issue. Such finding does not find support from the material on record referred to hereinabove. On the contrary the material available on record conclusively establishes that the matter relating to maladministration/negligence was before the Tribunal and was the exclusive domain of the Banking Tribunal. No other Court or Tribunal would have jurisdiction to decide the issue in view of the provisions of section 5(3) of the Banking Tribunals Ordinance, 1984 under which the petitioner had filed the suits for recovery of the amounts advanced by way of loans/finance facilities.
13. ' Another ground which prevailed upon respondent No,1 in entertaining the review petition and exercising review jurisdiction was that at the time when the complaint was filed the issue relating to maladministration/negligence was not sub judice inasmuch as the appeal preferred by respondent No,3 before the District Judge, Rawalpindi against the judgment of the Civil Court dismissing the suit wherein the issue relating to maladministration/negligence was raised had been dismissed and, therefore, there was no bar for him to entertain the complaint and decide the same on merits. This reasoning was also fallacious. The issues involved in the suit filed by respondent No,3 were decided against him when the Civil Court dismissed his suit and the appeal filed against the decree of the Civil Court was also dismissed. The ground of dismissal was that the Civil Courts had no jurisdiction to entertain a suit relating to the issue of maladministration/negligence alleged against the petitioner as it was the sole jurisdiction of the Banking Tribunal. There was, thus, a finding of the Court of competent jurisdiction that the issue relating to maladministration/negligence could be agitated before the Banking Tribunal and no other Court had jurisdiction to entertain a suit or matter in relation thereto. This finding of the District Judge was not assailed or challenged by way of a revision or in any other manner before the High Court and after expiry of the limitation for filing the revision petition/other proceedings, as the case might be, the same attained finality. The subsequent complaint or review petition before any other forum or authority for adjudication in relation to the issue of maladministration/ negligence would be barred in view of the principle that when a party who had the right to assail or challenge an adverse order or finding pronounced against him by a competent Court of law fails to do the same, then the order/judgment/finding would attain finality and would be unassailable even in the hierarchy of the forum nothing to say before an absolutely different forum or authority.
14. In support of the above, reliance is placed on (i) Allah Baksh and another 1987 SCM R 810; (ii) Khushi Muhammad and 9 others v. The Chief Land Commissioner, Sindh and 17 others PLD 1986 Karachi 623 and (iii) Muhammad Rafiq v. Additional Settlement Commissioner, Multan and others PLD 1966 Lahore 590. In the presence of the order/judgment of the District Judge, Rawalpindi respondent No,3 has been precluded from assailing the finding of the District Judge that the issue relating to maladministration/ negligence could only be raised and agitated before the Banking Tribunal.
15. ' Syed Tariq Ali, the learned Federal Counsel in support of the impugned order of the Ombudsman submitted that the jurisdiction of the Banking Tribunal was very narrow and limited and it could only decide a question relating to the recovery of money which had been allowed to a customer by way of finance as envisaged in the Banking Tribunals Ordinance, 1984 (hereinafter referred to as the Ordinance of 1984). He further submitted that in view of the limited jurisdiction conferred on a Banking Tribunal it would not be possible for it to take into consideration the issues relating to the maladministration/negligence on the part of the petitioner in disbursing the finance facility, charging mark-up or interest at exorbitant rate and committed acts resulting in monetary losses to respondent No,3 as well as loss of reputation, humiliation and harassment and further it could not award either damages for monetary losses suffered by them or as compensation for loss for reputation. This contention is without any substance and appears to have been made in complete ignorance of section 5 of the Ordinance of 1984, which provides that a Banking Tribunal in exercise of its civil jurisdiction in respect of a claim filed by a banking company against a customer in respect or arising out of a finance provided by it shall have all the powers vesting in a Civil Court under the Civil Procedure Code. The question relating to the powers and jurisdiction of a Special Court of civil jurisdiction constituted by a statute was considered by this Court in the case of Farooq Ali v. Banque Indusuez and 3 others reported in 1985 CLC 630, it was held that a Special Court while exercising civil jurisdiction as stated above shall have all the powers vested in a Civil Court under the Civil Procedure Code and was competent K to grant reliefs which Civil Court could grant under section 9 of the Civil Procedure Code. The observation to the above effect was also made by the Peshawar High Court in the case of Muhammad Nazir Afandi v. Industrial Development Bank of Pakistan, Karachi and 3 others reported in PLD 1992 Peshawar 87, pronouncing that Special Court while exercising jurisdiction in respect of a claim filed before it by banking company against borrower or by a borrower against banking company in respect of or arising out a loan would have all powers vested in a Civil Court under Civil Procedure Code. In both the aforecited cases this Court and the Peshawar High Court were dealing with the Special Courts constituted under the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), wherein section 6 conferred all the powers of Civil Court on the Special Banking Court whereas in the present case the issue involved is with regard to the powers of Banking Tribunals constituted under the Ordinance of 1984. It is, however, to be noted that there are provisions in the Banking Ordinance similar to the provisions of the Ordinance XIX of 1979 in relation to the powers of the Banking Tribunals and the Special Banking Courts respectively and reference has already been made to section 5 of the Ordinance of 1984 which confers all the powers of a Civil Court on the Banking Tribunal. Thus the observations made in the aforesaid two cited cases are applicable on all fours to the facts of this case.
16. ' Power of review of an order cannot be exercised by a Court or Tribunal or forum unless specifically conferred on such Court, Tribunal or forum as held by the Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1. With regard to the contention on behalf of respondent No,3 that the original order dated 22-12-1992 being illegal, erroneous and suffered from defect floating on the face of it, it could be recalled, rescinded, modified or altered in exercise of the powers vesting in a Court, Tribunal or Forum by virtue of section 21 of the General Clauses Act, it is to be observed that such power can be exercised by a Court/Tribunal/Forum to set right an illegal and void order passed in exercise of the jurisdiction not vesting in it or found to suffering from some other grave illegality or contrary to the material on record. In the present case, the original order dated 22-12-1992 was passed by respondent No,1 in exercise of the jurisdiction vesting in him. It did not suffer from any other illegality nor was made contrary to or misreading of evidence. It was a proper and valid order, in relation whereof power conferred by section 21 of the General Clauses Act, 1897 could not be exercised.
17. ' Mr. Syed Tariq Ali, the learned Federal Counsel objected to the maintainability of the Constitutional petition on the ground that adequate, alternative and efficacious remedy was available to the petitioner by Article 30 of the Ombudsman Order of 1984 which provided for a representation before the President of Pakistan but the petitioner in supersession of the same invoked the Constitutional jurisdiction of this Court which was violative of the established principle that a party can approach this Court under Article 199 of the Constitution only after it has exhausted of the remedies available under a statute. The contention of Mr. Syed Tariq Ali is correct as normally a party is required to have recourse to the forum and the remedy made available to it by a statute for assailing an order passed by a functionary/authority/forum exercising powers under the statute. However, it has also been held that here the order impugned appears to be so patently illegal, void or wanting in jurisdiction that any further recourse to or alternative remedy may only be counter-productive and, by invocation of Article 199 the mischief can forthwith be nipped in the bud then in such matters neither the alternative remedy would be adequate nor bar of jurisdiction in the sub-Constitutional Legislation would come in the way of this Court in exercise of its Constitutional jurisdiction. Such was held in the case of Khalid Mehmood v. Collector of Customs, reported in 1999 SCM R 1881. In the case of Gatron (Industries) Limited v. Government of Pakistan and others reported in 1999 SCM R 1072 it was pronounced that a Constitutional petition under Article 199 of the Constitution would be competent without exhausting all remedies if the impugned order was passed by a Court or Authority by exceeding its jurisdiction. In this case it has already been held that the learned Ombudsman had passed orders dated 17-10-1993 and 8-1-1995 in exercise of jurisdiction which did not vest in him and had thus usurped the jurisdiction illegally. Both the orders are patently illegal, in exercise of illegal jurisdiction and are void. The pronouncements made by the Supreme Court in the aforecited two cases are applicable on all fours to the facts of this case and non-exhausting of the remedy of representation before the President of Pakistan by the petitioner would not be a bar for the maintainability of this Constitutional petition.
18. ' For the foregoing reasons and discussion, it is absolutely clear that respondent No,1 had committed a grave and serious illegality in assuming jurisdiction by entertaining the review petition and subsequently vide his order dated 8-1-1995 In recalling his order dated 22-12-1992 and holding that there was maladministration on the part of the petitioner. Both the orders are without jurisdiction and are void ab initio.
19. ' By a short order dated 10-9-2003, this Constitutional petition was allowed and the orders of respondent No,1 dated 17-10-1993 and 8-1-1995 were set aside while the original order dated 22-12- 1992 was restored for reasons to be recorded later. These are the reasons for the said short order.