' SYED HASSAN AZHAR RIZVI, J.---Through this petition the petitioner has impugned the order dated 2-11-2010 passed by the learned Banking Court No,1 at Karachi, whereby the application for leave to defend filed by petitioner was allowed subject to fusnishing surety in the sum of Rs 5 million to be submitted within 15 days.
2. In nutshell the facts of the case are that respondent had filed a Suit No,1221 of 2002 before this Court for 'recovery of damages, which was decreed on 18-4-2005 against the petitioner. The petitioner challenged the said decree in H.C.A. No,115 of 2005, which was allowed by Division Bench of this Court by order dated 20-12-2006 and held that the suit filed on original side of this Court due to ill-advice and the impugned order is liable to be set aside as under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the point of jurisdiction vested with the Banking Court and the original civil jurisdiction is not available to the respondent to challenge the act of the appellants in fulfilment of any obligation then customer or financial institution whoever commits default then plaint is to be filed in the Banking Court. The respondent being aggrieved challenged the said order before Hon'ble Supreme Court of Pakistan by filing Civil Appeal No,1478 of 2007, which was also dismissed vide order dated 4-2-2010.
3. We have heard Mr. Khashif Hanif learned counsel for the petitioner and Mr. Khaliq Ahmed learned counsel for the respondent.
4. Mr, Kashif Hanif, advocate after narrating the brief background of the case has contended that the leave granting order could not be made subject to any condition as section 10 of the Ordinance provides that where the Banking Court found that a serious and bona fide, dispute had been raised in the application filed by the defendant, then the Court is bound to grant leave to defend the suit because law does not impose any other condition nor does it authorize the Banking Court to impose any other condition upon grant of leave to defend. He contended that the impugned order will defeat the very purpose of the provided fundamental right enshrined in the Constitution. He also contended that the impugned order is violative of Article 10-A of the Constitution, which guarantees the fair trial for determination of civil obligation. He further contended that it is a settled principle of Iaw that once the case is found fit' for granting leave no condition of furnishing security can be attached, as the same would tantamount to reading more than what actually the Legislature has mentioned in the section. Learned counsel' in support of his submission has placed reliance on the cases of MESSRS SHAHZAD ICE FACTORY AND 2 OTHERS v. SPECIAL JUDGE BANKING (II)
Lahore AND ANOTHER (PLD 1982 Lahore 92), MESSRS S.M. AYUB AND CO. AND OTHERS v. NATIONAL BANK OF PAKISTAN (1983 CLC 2828), MESSRS CHENAB CEMENT PRODUCT (PVT.) LTD. v. BANKING TRIBUNAL, LAHORE AND OTHERS (PLD 1996 Lahore 672), IJAZ AHMAD PIRACHA v. JUDGE, SPECIAL COURT BANKING AND OTHERS (1982 CLC 2367) and FEDERATION OF PAKISTAN AND ANOTHER v. MALIK GHULAM MUSTAFA KHAR (PLD 1989 SC 26).
5. On the other hand, Mr. Khaliq Ahmed learned counsel for the respondent halfheartedly argued that no appeal can be preferred against interlocutory order as the same could not be challenged by filing of Constitutional petition, which would 'amount to negate the provisions of the statute and proper course for party to wait for final order and then file an appeal against same wherein he could also impugn the interlocutory order. He supported the impugned order, but not filed any comments/counter-affidavit to oppose the petition. He, therefore, prayed that petition being not maintainable and is liable to be dismissed.
6. We have given due consideration to the arguments advanced by the learned counsel for the parties, the material available on record and the case-law cited at the bar.
7. The petitioner being a financial institution has filed an application for leave to defend in 'a suit filed by the respondent before the Banking Court for recovery of damages, which was allowed subject to furnishing of surety for the amount of Rs,5 million. The petitioner aggrieved by that order filed this Constitutional Petition praying that order dated 2-11-2010 may be modified to the extent of condition of furnishing surety in the sum of Rs,5 million, as the order has been passed by the learned Banking Court in excess of jurisdiction; Admittedly, the statute provided no appeal or Constitutional petition against the interlocutory order, but the Court in its extraordinary jurisdiction has power to correct the wrong, particularly where no efficacious remedy available to an aggrieved party. Reference can be made to the case of KHALID MEHMOOD v. COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE (1999 SCM R 1881), wherein the Hon'ble Supreme Court of Pakistan held that Article 199 of the Constitution opens with word to the effect that the High Court may exercise its powers under such Article only "if it is satisfied that no other adequate remedy is provided by law."
' The above-cited case specifically provided that this Court shall have jurisdiction under the said provisions of the Constitution only when the law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue. Therefore, the main question in every case of Article 199 of the Constitution is whether an aggrieved person, who resorts to the Constitutional jurisdiction of this Court, has or has not any other adequate remedy available to him under the law. Moreover, the petitioner is a private limited bank and running its business since more than four decades and there is no chance of its abscondence, hence the imposition of condition of furnishing surety is of no consequence. We, therefore, allow this petition and modify the order to the extent of condition of furnishing surety in the sum of Rs,5 million. We also direct the learned Banking Court to complete the trial expeditiously preferably within three (3) months from the date of receipt of this order.