' MIAN SAQIB NISAR, J.---Both the appeals (R.F.A. No,303 of 2003 and R.F.A. No,436 of 2001) involve the common propositions of law, therefore, are being decided together
2. Brief facts of the case, R.F.A. No,303 of 2003, are that in the year 1993, M/s. Al-Hadhab Trading Company Limited, a venture operating in Dubai, obtained interest bearing loan/finance facility from the Habib Bank Limited, Sheikh Zayed Road Branch, Abu Dhabi U.A.E.; the term of which expired in 1998. The aforesaid company comprised of Salem Naser Hamed Al-Salemy and Nusrat Mehdi Chaudhry, who is a Pakistani citizen. Nusrat Mehdi, the appellant, stood as a guarantor for the repayment of the loan and it is admitted position that the company has defaulted in discharging its liability, with the result that the respondent-Bank brought a suit for the recovery of the suit amount, under the provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, before the Banking Court presided over by a learned Judge of this Court, against the appellant and the said company. The Court issued notices to the defendants, but as the company did not respond to it and applied for the leave, an ex parte decree dated 10-8-2001 was passed against it, whereas the matter regarding the determination of the leave application of the appellant, which was independently filed, was yet pending, when the Act, 1997 was repealed and substituted by Financial institutions (Recovery of Finances) Ordinance, 2001, with the consequences that on account of the change in the pecuniary jurisdiction, the case stood transferred to the Banking Court below.
3. In compliance with the new law, the appellant/ defendant filed a fresh leave application, reiterating therein about the jurisdiction of the Banking Cour[. However, the Court through the impugned order dated 17-5-2003 has discarded the objection and has refused to grant the leave, mainly on the reasoning that an ex parte decree has already been passed by the High Court, while exercising its jurisdiction as the Banking Court, against the company, a co-defendant, which means that the Courts in Pakistan have the jurisdiction to adjudicate the matter. Moreover, that in view of the definition of the "Financial Institution" given in section 2(a)(i) of the Ordinance, 2001, as the respondent-Bank is registered and incorporated in Pakistan, therefore, it could competently invoke the jurisdiction of the Banking Court under the special law.
4. The relevant brief facts of the other appeal as given in the impugned judgment by the Court are:- "It appears that the defendants obtained financial facilities from the plaintiff-Bank in Dubai. The defendant No,2 returned to Pakistan as is stated in his application (P.L.A. No,105-B of 2000) seeking leave to appear and defend the suit. The date on which he returned to Pakistan, has not been stated in the said application but it is clear from the aforesaid application that the defendant No,2 is residing in Sialkot and was so residing when this suit was filed."
' In this case too, the leave was sought by the appellants on the ground of the lack of jurisdiction of the Banking Court constituted under the special law. Anyhow, the learned Judge, while meeting the objection held:-- "The defendant has not claimed to be a permanent resident of any place outside the jurisdiction of this Court. It is thus clear from the aforesaid averments in the PLA that the defendant is permanently residing within the jurisdiction of this Court. This circumstance is by itself sufficient to vest jurisdiction in this Court under section 20(a), C.P.C. To entertain and decide this suit. The fact that the plaintiff-Bank provided finance to the defendants through a branch established by it outside Pakistan or that the said facility was availed by the defendants outside Pakistan, cannot oust the jurisdiction vested in the High Court on account of the residence of the defendants within the jurisdiction of the High Court. The defendant's objection to jurisdiction, as such, is without merit and is, therefore, rejected."
5. In both the appeals, the learned counsel for the appellants argued that the Banking Court constituted under Financial Institutions (Recovery of Finances) Ordinance, 2001 could only exercise its jurisdiction over the lis, if it had the inherent jurisdiction i,e, the jurisdiction over the subject- matter; the jurisdiction over the parties and obviously the territorial jurisdiction. The objection raised in the leave application was a substantial question of law, which could not be decided without ascertaining and inquiring into certain "jurisdictional facts" and resultantly, the appellants were entitled to the leave.
6. We have heard the learned counsel for the parties and find that in the facts and circumstances of each case, the objection of jurisdiction raised by the appellant was not illusionary, frivolous or bald, rather by all means, it was/is a substantial question of law, the determination of which, depends upon the ascertainment of certain "jurisdictional facts". And for such ascertainment, in all probabilities, the recording of the requisite evidence cannot be ruled out. In any case, we are of the view that the said question should not have been dealt by the Court in a summary manner, rather the three aspects of the jurisdiction, raised by the appellants and noted above, should have been considered, dilated upon and decide, which is conspicuously missing in the present cases; resultantly, the case of the appellants warranted the grant of the leave.
' Therefore, these appeals are allowed; the impugned judgments and decrees are set aside and they are remanded to the concerned forum for the decision afresh, in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.