1. By this Judgment, I intend to dispose of M.A. 27 to 43 of 1995 as common question of law an facts are involved. Brief facts can be summarized as that the Respondent/House Building Finance Corporation filed application under section 30 of the House Building Finance Corporation Act VIII of 1952 (hereinafter referred to as the 'Act') against the respondent in the Court of District Judge, Thatta, against the appellants. After hearing the parties and recording the evidence the learned Addl. District Judge to whom the matter was transferred by his order dated 30-4-1998 allowed the applications to the extent of claim amounting to Rs,2,11,086 and further ordered the applicant or whosoever in possession of the property shall handover the vacant possession to Accountant of the Court who shall sell the property in accordance with the provision of Civil Procedure Code. Heard Mr. Jhamat Jethanand, learned Advocate for the Applicant, Advocate appearing on behalf of the Respondent remained absent. Mr. Jhamat Jethanand, learned Advocate for the Applicants questioned the impugned order on the grounds that impugned order passed by the Additional District Judge who was not competent to pass the order as the Jurisdiction under section 30 of the Act can only be exercised by the District Judge, application under section 30 of the Act filed by the respondent was premature and has been filed before the expiry of the agreed period, learned Judge committed error of law in failing to take into consideration that Sujawal was calamity affected area and in terms of Clause 20 of the Deed of Assignment and Partnership executed between the parties, applicant was not liable to pay the amount due to loss caused to appellant house has to share by the respondent.
2. The application was filed by the Manger of the Applicant Bank who was not authorized to file the same. I have taken into consideration the arguments advanced by the learned Advocate for the Applicant and also gone through the impugned order. Apparently there is no dispute so far as material facts are concerned. The applicants are not denying that they have not availed the financial facility provided by the Respondent bank and that they have not paid installments in time. I will consider the objection of the learned Advocate in sequential orders. In order to appreciate the question, whether the order passed by the learned Additional District Judge can be termed as an order passed without jurisdiction I would like to reproduce relevant part of section 30 of the Act: "Special provisions for enforcement of claim by the Corporation.--(1) Where by reason of the breach of any agreement by the borrowers [or the partner] the Corporation becomes entitled to require the immediate payment of the amount due by the borrower [or the partner] to the Corporation, any officer of the Corporation authorized generally or specially by the Board in this behalf may apply to the District Judge within the local limits of whose jurisdiction the borrower's [or the parter's] house is situated for any one or more of the following reliefs namely. [Emphasis added). From the perusal of the section 30 of the Act, it appears that in case of default Corporation can apply to District Judge within local limits of whose jurisdiction borrower house is situated for anyone or more reliefs provided in the section. The Respondent had filed the applications before the District Judge, Thatta on 22-12-1994 and same were admitted by the District Judge Thatta. On 9-2-1995 notices were issued to the parties. The Applicants appeared before the District Judge, Thatta and filed their written statements. On 30-5-1995 matters were transferred by the District Judge, Thatta to Additional District Judge, Thatta where the same were proceeded without any objection from anyone of the parties. The learned II Additional District Judge after transfer of the matters to him proceeded with the same, recorded evidence of the parties and passed impugned order. Identical provision of section 30 of the Act found place as section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 under which jurisdiction was conferred on District Judge .In the case of I.D.B.P. v. Messrs Wood Industries Ltd. Etc., 1980' CLC 1745, it was held that section 39 of the Ordinance confers jurisdiction on District Judge not as a Court but as a persona designata, derives powers under the said provision and the proceedings as more of executive nature than strictly judicial. In the case of M.S. Abid alias Mohd Abid v. Provincial Election Authority and 2 others 1982 CLC 501, it was held that definition of a "District Judge" as given in section 3(13) of General Clauses Act (X of 1897) includes Additional District Judge. In the case of Asif v. Controller of Rents and others 1988 CLC 1145, while dealing with the matter under Cantonments Rent Restriction Act, 1963 where appellate power was provided to District Judge and mater was transferred to Additional District Judge where parties had appeared and proceeded, the learned Judge of this Court held that the "petitioner appeared before the Forum which had no jurisdiction in the matter now objection to the jurisdiction of such forum could be raised by the petitioner as he allowed it to usurp the powers which he did not possess when the case has been decided against petitioner cannot be permitted to raise such objection". In the case of Muhammad Sabir v. Additional District Judge II, Rawalpindi and 2 others PLD 1979 Lah. 353 and order passed by the Additional District Judge was questioned in appeal and it was held that the order is without lawful authority. Civil Procedure Code 1908 does not define "District Judge" or "District Court"; however section 3 of the Civil Procedure Code defined that for the purpose of this Code, the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes Court is a subordinate of the High Court and District Court. Section 5(2) of the C.P.C. Defines "Revenue Court" in subsection (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature. Section 22 of Sindh Code Act 1926 was repealed by Ordinance II of 1962 defined District Court as principal Court of original civil jurisdiction in civil district. Section 23 (2) further provided that Provincial Government may appoint joint Judges to any District Court whenever such joint judge shall exercise power and jurisdiction of District Court concurrently with the District Judge in such matter as may be referred to him by the District Judge. Karachi Court Ordinance, 1955 provided that Provincial Government shall assign a person to which the District Judge for the Province and when business pending before the District Judge requires an aid of Additional District Judge or Judges appoint such District Judges as may be necessary. Subsection (2) of section 6 of Karachi Court Ordinance, -1955 provides that an Additional District Judge so appointed shall discharge the functions of a District Judge as the District Judge may assign to him, and while doing so the function as the District Judge. Section 13 gives powers to District Judge to distribute businesses amongst Additional District Judges and subordinate Judges in such a manner as District Judge deemed think fit. West Pakistan Civil Court Ordinance 1962 repealed Sindh Court Act 1926 and Karachi Code Order 1956. Section 3 of West Pakistan Civil Code Ordinance provided three classes of Court i,e, Court of District Judge, Court of Additional District Judge and the Court of Civil Judge.
3. Subsection (2) of section 6 of Ordinance provided that an Additional District Judge shall discharge such function of a District Judge as a District Judge may assign to him and in discharge of these functions, he shall exercise the same power as the District Judge. Section 15 of the Ordinance gives powers. To District Judge to distribute civil business cognizable by his Court and the Court under his control distribute among such Court in such a manner as he deemed think fit. Subsection (15) of section 3 of the General Clauses Act defines "District Judge" shall mean the Judge of the principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.
4. On reading the above referred provision it appears that the Additional District Judge while exercising power in respect of the work assigned to him exercise of the power of the District Judge and accordingly my humble opinion the Additional District Judge on transfer of the matter to him by the District Judge in exercise of the power, under section -6 Ordinance 1962 haS decided the matter as a District Judge.##TE# The question whether while dealing with the claim under section 30 of the. Act, District Judge acted as a Court or as persona designata, when look in the light of explanation clause incorporating in section 30 of the Act, by House Building Finance Corporation (Amendment) Act of 1974 explaining that where the extent of liability exceeds fifty thousand in Karachi District then references to, District Judge were references to "High Court". The intention of law makers becomes more clear from the said explanation that claim over fifty thousand is to be filed in High Court and less than that before the "District Judge" as Court not as a persona designata otherwise it can create anomaly, that claim less than Rs,50,000 will be dealt by "District Judge" as persona designata and .Exceeding that by High Court as Court. Under subsection (9) of Section 30 of the Act while passing the order for the attachment of sale of the property the procedure provided in the Code of Civil Procedure, 1908 is to be followed as if the corporation were the decree-holder. The question whether District Judge acts as.a Court or as persona designata under section 30 of the Act is not free from doubt, which can be answered in some other appropriate case and I would like to decide the matter as appellate Court on merits than to remand the same after 10 years for a fresh decision as all the evidence and documents are available and as the advocate has argued the case not only on legality of the judgment but also on the merits of the case.
5. Since all the evidence and documents are available before me 'and the learned advocate has argued the case not only on legality of the judgment but also on the merit of the case. I would like to deal with the same. As regards the objection that the application filed by the respondent was premature. Section 30 of the Act provided that where by reason of breach of contract by the borrower the Corporation becomes entitled to require immediate payment of amount due by the borrower to the Corporation. The amount of finance was repayable by monthly installment of Rs,1168 for a period of financing and total amount of finance along with mark-up was payable within 15 years. Admittedly, the applicant has failed to pay installments on its due dates and as such the application under section 30 of the Act cannot be termed as premature application. Coming to the objection that Sujawal was declared calamity affected area, the burden to prove lies upon the applicant. The applicant has not produced Notification that the said area was declared calamity affected area in the years 1984, 85, 92, 94 and if so whether the recovery of finance provided by respondent was deferred or not under the Notification. In the absence of such Notification and particularly when the respondents witness categorically stated that Notification about the calamity affected area was not applicable on the finance of the respondent bank it is not possible to hold that the Applicants were absolved from their liabilities to pay the finance on its due dates. As regards the objection that the application was filed by the Manager of the Respondent bank was not maintainable as he was not competent officer to file an application, the learned Advocate for the appellants stated that only District Manager of the respondent bank was a competent officer to file an application. From the record it appears that the application was filed by Muhammad Iqbal, District Manager of the respondent Bank. Coming to the last objection of the appellant that under Clause 20 of the Agreement, Clause 20 provided that corporation shall share the losses caused by vismajor only after revaluation of land and construction at the time the loss caused. In his evidence he has -not stated that due to flood or natural calamities property in question was damaged and that he called upon the respondent to assess the property in question was damaged and that he called upon the respondent to assess the damage, the appellant has not stated single word that due to his vismajor how much loss has been caused to property in question. The burden to prove damage to property was on appellant and he failed to discharge the same. The respondent had produced certified copy of the Statement of Account showing outstanding dues against the appellants, and appellant has not questioned the authority of such entries in his evidence or in cross-examination of respondent's witness. For the foregoing reasons listed appeals are dismissed however with no order as to costs.