' The civil revision in hand (Civil Revision No, 2090 of 1980) and two other civil revisions namely, Civil Revision No, 2091 of 1980 and Civil Revision No, 2092 of 1980, are directed against certain interlocutory orders of a Special Court established under the Banking Companies (Recovery of Loans) Ordinance, 1979, hereinafter referred to as the Ordinance. The impugned orders were made in three cases which are being heard by the learned Special Court in exercise of its civil jurisdiction.
2. Mr. Muzaffar Ahmad Zafar, learned counsel for the petitioner, contended that the Special Court is a Court subordinate to the High Court, and therefore the orders passed by the Special Court can be revised by the High Court under section 115 of the Code of Civil Procedure. He relied on section 3, subsection (2) of section 5, section 6, section 7 and section 12 of the Ordinance, 1979 to support his plea.
3. The aforementioned provisions of the Ordinance read as under :- "3. Ordinance not to derogate from other laws.-The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.
5. Establishment of Special Courts.-(1)
(2) A Special Court shall consist of a person who is a District Judge.
6. Powers of Special Courts.-(1). A Special Court shall -
(a) in the exercise of its civil jurisdiction, have, in respect of a claim filed by a banking company against a borrower or by a borrower against banking company in respect of, or arising out of, a loan all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) ;
(b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for that purpose, have the same powers as are vested in the Court of an Assistant Sessions Judge under the Coda of Criminal Procedure, 1898 (Act V of 1898) : ' Provided that, for the purpose of a trial before a Special Court, the provisions of Chapter XVIII of the said Code shall not apply : ' Provided further that a Special 'Court shall not take cognizance of any offence punishable under this Ordinance except -upon complaint in writing made by a person authorized in this behalf by the Banking company in respect of which the offence was committed ; and (c)exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it by or under this Ordinance.
(2) Notwithstanding anything contained in subsection (1), a Special Court shall have no civil jurisdiction in a case in which-,
(a) the outstanding amount of the loan does not exceed one lac rupees ;
(b) arbitration proceedings in respect of the loan are pending before the arbitrator ; or (c)the loan was sanctioned under an agreement between the Banking company and the borrower which provides for a dispute between the parties being referred to arbitration.
(3) All proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code (Act XLV of 1860), and the Special Court shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
(4) No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this. Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court.
(5) In respect of proceedings transferred to a Special Court by virtue of subsection (4), the said Court shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence -fore the transfer and may act on the evidence already recorded by or produced before the Court from which the proceedings are so transferred.
"7. Procedure of Special Court.-(1)
(2) In the exercise of its civil jurisdiction, the Special Court shall in all suits before it, including suits based on mortgages of all kinds on statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order )(XXVII in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908).
12. Appeals.-(l) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed : ' Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.
(2) An appeal under subsection (1) shall be on any one of the following grounds, namely :-
(a) the decision being contrary to law or to some usage having the force of law, or
(b) the decision having failed to determine a material issue of law or usage having the force of law, or
(1) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits.
(3) An appeal may be preferred under this section from a decision made ex parte.
(4) An appeal under this section shall be heard by a Bench of not less than two Judges.
(5) No appeal shall be admitted for hearing unless the appellant deposits is cash with the High Court as amount equivalent to the judgments debtor, at the discretion of the High Court, furnishes security equal in value to such amount.
4. These provisions of the Ordinance would show that a Special Court is to be presided over by a District Judge, it has all the powers vested in a civil Court under the Code of Civil Procedure and its final decisions are open to appeal before the High Court, but despite all this the Special Court is 44 Court of special jurisdiction and not a civil Court of general jurisdiction. It has a separate entity and is different from the Courts which are subordinate to the High Court within the meanings of section 115 of the Code of Civil Procedure. For the purposes of the said Code, the Courts subordinate to the High Court find mention in section 3 thereof, which is to the following effect :- "3. Subordination of Courts.--For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court, of grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."
' No amendment has been made in section 3 of the Code of Civil Procedure so as to declare a Special Court also as a Court subordinate to the High Court nor there is any provision in the Ordinance to the effect that a Special Court shall be deemed to be a Court subordinate to the High Court for the purposes of section 115 of the Code of Civil Procedure. In subsection (3) of section 6 of the Ordinance, a Special Court has been declared to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure. If the intention of the Legislature had been to declare a Special Court as a Court subordinate to the High Court for the purposes of section 115 of the Code of Civil Procedure a provision similar to subsection (3) of section 6 of the Ordinance could have been included in the Ordinance but that was not done. I am, therefore, unable to agree with the learned counsel that a Special Court is a Court subordinate to the High Court and, therefore, under section 115 of the Code of Civil Procedure, its orders are open to revision before the High Court. In taking this view I am fortified by the following observations made by Mr. Justice Nasim Hassain Shah (now a Judge of the Supreme Court) in Wajahat Ali Hasnie v. Mst. Ghazala (1):- "I cannot accept the broad and unqualified proposition that once it is held that an officer, authority, or functionary is exercising the functions of a Court in relation to rights that may be called 'civil' that officer, authority or functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil disputes between the parties but also the income-tax authorities which determine the subject's liability to the State. I respectfully agree and may add that the words 'subordinate Court' in section 115 of the Code of Civil Procedure ought to be understood in the sense given to them in section 3, otherwise the words 'for the purposes of this Code' would be rendered useless. Since section 3 is enacted for the purposes of the Code and deals with all the civil Courts and their subordination to one another, the inference appears to the, irresistible that no Court other than that mentioned in it can be said to be {{FOOT NOTE}}
(1) PLD 1970 Lab. 641 {{FOOT NOTE}} ' subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure."
' The case of Wajahat Ali Hashmi was in respect of Family Courts established under the West Pakistan Family Courts Act, 1964, which are generally, if not always, presided over by judicial officers and it was ruled therein that the orders of the Family Courts are not liable to revision before the High Court. Later, in Mst. Tehseen Akhtar v. Mahmood-ul-Hassan (1) and Mst. Zaibun Visa v.
Muhammad Mozammil (2) also it was held that the orders of a Family Court are not amenable to revision before the High Court under section 115 of the Code of Civil Procedure.
5. It seems that with a view to securing expeditious disposal of the cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decisions of the Special Court should be open to appeal before the High Court. This is evident from subsection
(1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance which make the following reading "7. Procedure of Special Court.-(0 Suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded a Special Court shall not allow adjournment.
8. Judgment and decree.-(1) A Special Court shall, after the case has been heard, pronounce judgment as early as practicable, and on such judgment a decree shall follow forthwith.
11. Finality of orders.-Subject to the provisions for appeal in section 12 no Court or other authority shall call or permit to be called in question any order, judgment or sentence of a Special Court or the legality or propriety of anything done or intended to be done by the Special Court under this Ordinance."
' As. Indicated earlier, subsection (1) of subsection 12 of the Ordinance allows an aggrieved person to take an appeal to the High Court against an order, judgment, decree or sentence of a Special Court, but in the proviso attached thereto it has been expressly laid down that "no appeal shall lie against an interlocutory order which does not dispose of the entire case before the Special Court".
The cumulative effect of sections 11 and 12 of the Ordinance, therefore, is that the interlocutory orders of the Special Court cannot be questioned before any Court including the High Court. Thus, the revisional jurisdiction of the High Court in regard to such orders is excluded.
6. Even if a Special Court is treated as a Court subordinate to the High Court, it would be of no avail to the petitioners. The Ordinance is a special law. Section 4 of the Code of Civil Procedure provides that in "the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force". Undoubtedly, a Special Court is a Court of special jurisdiction and, as explained above, sections 11 and 12 of the Ordinance preclude the High Court from exercising its revisional jurisdiction qua the orders of the Special Court. It would, therefore, follow that in view of the provisions of sections 11 and 12 of the said Ordinance read with section 4 of the Code of Civil Procedure, the orders {{FOOT NOTE}}
(1) PLD 1971 Lah. 875 (2) PLD 1962 Kar. 401 {{FOOT NOTE}} ' of the Special Court cannot be assailed before the High Court, in revision, on the score of section 115 of the Code of Civil Procedure. Similar opinion was delivered in the aforesaid case of Wajahat Ali Hashmi. The relevant observations made in that case, with reference to the Family Courts Act and the Family Courts established thereunder, are as follows :- "The object of this Act is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions of the Act the Family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case, vide section 14 of the Family Courts Act. But merely because of this subordination to the High Court it does not automatically follow that the orders passed by such a Court become revisable by the High Court. The revisional power is contained in section 115 of the C. P. C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure does not, as provided in section 4 override any special or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given their full .Effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of the Family Court from the operation of section 115, C. P. C. And the said provision of law is not available for obtaining revision of orders passed by the Family Courts. In somewhat similar circumstances, in the case of Hafeez Ahmad v. Barkat Ali PLD 1955 Lah. 629 Mr. Justice B. Z. Kaikaus also took a similar view."
7. As pointed out above, the provisions of the Ordinance relied upon by the learned counsel for the petitioner with a view to taking the benefit of the provisions of section 115 of the Code of Civil Procedure include section 3 of the Ordinance which is reproduced below for facility of reference : "3. Ordinance not to derogate from other laws.-The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force."
' The saving clause contained in section 3 of the Ordinance, which has been underlined by me, clearly shows that in case of any inconsistency between the provisions of the Ordinance and those of other laws the former shall prevail. It has been seen that section 11 of the Ordinance read with section 12 thereof also comes into conflict with the provisions of section 115 of the Code of Civil Procedure. Section 3 of the Ordinance, therefore, does not I allow this Court to exercise the revisional jurisdiction vesting in it under section 115 of the Code of Civil Procedure in respect of the orders made by a Special Court.
8. The upshot of the foregoing discussion is that the civil revisions before me, which are directed against certain interlocutory orders of a Special Court, are not competent. They are, accordingly, dismissed in limine.