' FAISAL ARAB, J.--- In Civil Transfer Application No,11 of 2010, the applicants seek transfer of the suit filed against them in the Banking Court by financial _institution to the banking jurisdiction of this Court where already a banking suit filed by the applicants against the financial institution is pending adjudication. It is stated that as both the suits are based on same cause of action and the documents and statement of accounts are also common therefore in order to prevent conflicting judgments, both the suits be ordered to be tried together. Similar grounds for transfer of suits from Banking Courts to this High Court have been taken in the other three connected Civil Transfer Applications by placing reliance on the case' of First Women Bank Ltd. v. Registrar of High Court 2004 SCM R 108.
2. After issuance of notices to the parties, Mr. Aijaz Ahmed, learned counsel for the respondent in Civil Transfer Applications Nos.2 and 11 of 2010 inter alia raised objection that under section 5(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, a High Court can transfer banking suit from one Banking Court to another but it cannot withdraw a suit from a Banking Court to its banking jurisdiction for trial. He submitted that power of the High Court to transfer banking suits provided under section 5(3) of 2001 Ordinance is not analogous to its power to transfer cases under section 24 of the Civil Procedure Code and, therefore, no reliance can be placed on the case of First Woman Bank (supra) as the said judgment has not taken into consideration provisions of section 5(3) of the 2001 Ordinance which is per incurium and therefore not binding on High Court.
The honourable Chief Justice of this Court constituted the present larger Bench to examine these legal questions arising in the case.
3. Mr. Nawab Mirza, learned counsel for the, applicant in Civil Transfer Application No,11 of 2010 argued that as such both the parties have filed suits against each other, therefore to avoid conflicting judgments, the suit pending in the Banking Court be ordered to be transferred to the banking jurisdiction of this Court for trial where the applicant's suit is already pending adjudication against the financial institution. Reliance was placed on the case of First Women Bank Ltd. (supra).
Mr. Saalim Salam Ansari, learned counsel for applicant in Civil Transfer Application No,22 of 2010 also took the same ground. Mr. Kazim Hasan, learned counsel for applicants in Civil Transfer Application No,2 of 2010 in addition to relying upon the case of the First Women Bank Ltd. (supra) referred to the newly incorporated Article 10A of the Constitution of Pakistan, which recognizes right of every person to a fair trial and adoption of due process for determination of his rights and obligation. According to him if in a suit filed by a financial institution the right to adduce evidence is not provided to its customer and both the suits are not ordered to be tried together then the right guaranteed under Article 10A of the Constitution would be compromised.
4. In response to the arguments of the applicant's counsel, Mr. Aijaz Ahmed referred to Section 5(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and argued that power of the High Court to transfer banking cases is limited only to transfer of cases from one Banking Court to another but such power is not available for transferring cases from Banking Court to the banking jurisdiction of High Court or vice versa. He elaborated his argument by submitting that the term "Banking Court" appearing in section 5(3) of the 2001 Ordinance is to be read in the context in which the entire section 5 of the 20001 Ordinance was enacted. In order words, according to learned counsel, the term Court" wherever it appears in section 5 of the 2001 Ordinance refers to only such Banking Court that is established by the Federal Government under section 5(1) of the 2001 Ordinance and is not referable to a bench of a High Court that tries cases under its banking jurisdiction.
5. While referring to the case of First Women Bank Limited (supra) relied upon by the learned counsel for the applicants, Mr. Aijaz Ahmed argued that the decision in this case allowing transfer of suits from Banking Courts to the banking jurisdiction of the High Court negates. The provisions of section 5(3) of 2001 Ordinance which only empowers the High Court to transfer a case from one Banking Court to another but not to itself and when a decision of the Court negates a written statutory provision of law then it is a decision per incurium and, therefore, losses its binding effect.
In support of this argument, Mr. Aijaz Ahmed placed reliance on the case of Abdul Rehman v. Mst.
Chaman Ara reported in PLD 1972 Kar.
164. At Page 169 of the report this Court held as follows:---
(8) Additionally, I feel that the method of referring to precedents for understanding a written provision of law is of much less value than it is for understanding an unwritten law like the unwritten part of English common law. The value of precedents in respect of written law lies in the elucidation which they provide but a precedent remains binding only until it does not come into conflict with a statute; when it does it pales away into colourless nonentity because of the supremacy of statutes over precedents. Yet it is not easy to restrict the use of precedents to strictly necessary occasions because secondhand thoughts are convenient to use as well as appear respectable since reference to precedents confer a look of learning to speech made in Court and to judicial writings.
But we have to keep in mind that a precedent is not meant to be the exposition of any statutory provision as a whole; therefore, it contains the view .Of law relevant to the facts of a particular case.
It has the angle which the facts give to it and no two sets of facts, unless extremely simple or unique, are exactly the same; therefore if many judgments are cited they present many angles of thought which come to the notice of the Court. They may or may not have essentially different facts but all of them are bound to have fine, yet sometimes, decisive variants in them which need to be duly noticed if it is necessary to use them. The necessity ordinary arises if there is no ambiguity or uncertainty to be clarified or if there is disagreement of views between the Court and counsel or if there is a conflict in judicial opinion".
6. To appreciate the first argument of Mr. Aijaz Ahmed, the provisions of sections 2(b) and 5(3) of the 2001 Ordinance need to be examined. Sections 2(b) and 5(3) read as follows:--- Section 2 (b) "Banking Court" means
11. In respect of a case in which the claim does not exceed fifty million rupees or for the trial of offences under this Ordinance, the Court established under section 5; and
(ii) in respect of any other case, the High Court.
' Section 5(3): Where more Banking Courts than one have been established in the same or different territorial limits, the High Court may, if it considers it expedient to do so in the interest of justice or for the convenience of the parties or of the witnesses, transfer any case from one Banking Court to another.
7. Section 2(b) of Financial Institutions (Recovery of Finances) Ordinance, 2001 divides Banking Courts into two categories. First category is of Banking Courts that are established by the Federal Government under section 5 (1) of the 2001 Ordinance, which try suits valued upto Rs,50 million. The second category is of the Benches of the High Courts that, tries banking suits valuing more than Rs,50 million. By virtue of section 2(b)(ii) of the 2001 Ordinance a Bench of a High Court that tries banking suits is also defined as Banking Court. Now this term "Banking Court" wherever used in the 2001 Ordinance is referable either to Banking Court established under section 5(1) of the 2001 Ordinance or to both the categories depending upon the context which this term is used in various provisions of the 2001 Ordinance. On examining the term "Banking Court" wherever it is used in the 2001 Ordinance, it become quite evident that this term appearing in sections 5(1), 5(2), 5(4) to 5(7) and section 6 of the Ordinance is referable only to the Banking Courts that are established by Federal Government under section 5(1) of the Ordinance. Elsewhere it means both the categories, except for section 5(3), where this term appearing at the beginning of this subsection is referable to Banking Courts that are established under section 5(1) of the Ordinance, 2001 and the term "Banking Court" appearing at the end of section 5(3) is referable to both the categories. This is so because the power of the High Court to transfer cases from one Banking Court to another as provided under section 5(3) of the 2001 Ordinance stems from the need to meet the ends of justice or for the convenience of the parties and witnesses and, therefore this power has to be applied universally to both the categories of Banking Courts as this need can arise in cases pending in any of the two categories of Banking Courts. This purpose cannot be fully achieved if the term "Banking Court" appearing at the end of section 5(3) is given restricted meaning and is applied only to Banking Courts that are established under section 5(1) of the 2001 Ordinance. Hence, in our opinion, the term "Banking Court" appearing in the end of section 5(3) of the 2001 Ordinance is referable to both the categories of Banking Courts and the High Court would be fully empowered to withdraw a suit from any Banking Court established by Federal Government under section 5(1) of the 2001 Ordinance for its trial before its own banking jurisdiction and vice versa. This power of transferring cases thus becomes analogous to the power of the High Court that is contained in section 24 of Civil Procedure Code, by virtue of which High Court can also withdraw any case pending in any Court subordinate to it and try or dispose of the same itself.
8. In the present case, transfer of suits from the Banking Court to the banking jurisdiction of this High Court has been sought to avoid multiplicity of proceedings as well as to avoid conflicting judgments. These grounds are also to be examined in the light of the intent behind incorporation of section 9(4) of the 2001 Ordinance. Section 9(4) makes provisions of section 10 of Civil Procedure Code inapplicable to banking cases. Section 10 was incorporated in the Civil Procedure Code to prevent trial of two suits relating to same subject-matter between the same parties o their representatives claiming under the same title. This provision of law makes it mandatory upon the Civil Courts of ordinary jurisdiction to stay a suit instituted subsequently in case all the conditions provided in section 10 are available in a case. Even where all such conditions are not available, two or more suits can still be consolidated and tried jointly if the ends of justice demands. This is, no doubt, done to avoid multiplicity of proceedings and to avoid conflicting judgments. However, for trial of recovery suits filed under banking laws, the law-makers intended expeditious disposal of banking suits for which summary mode of trial has been provided under the banking laws. The object behind providing expeditious mode of trial is that the controversy in Banking Courts generally pertains to accounting disputes which could be decided by merely considering the statement of accounts and, the documents of financial transactions executed by the parties. This saves the Banking Court from undertaking a time consuming process of recording evidence in each and every case. In order to ensure that this object of expeditious disposal of banking suits is not defeated by an unwilling customer of the financial institution who may file his own suit before the financial institution could file its own recovery suit and then invoke provisions of section 10 of Civil Procedure Code or seek consolidation of the two suits just to delay the disposal of the suit filed against him, the provisions of section 10 have been made inapplicable to banking suits under section 9(4) -of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Section 9(4) of the 2001 Ordinance thus enables the Banking Court to proceed with the trial of the suit filed by a financial institution irrespective of the fact that the customer has already filed a suit for settlement of account or damages against the financial institution. In this manner, a suit which though may have been filed by a financial institution subsequent to the suit filed against it by its customer, nevertheless it continue to proceed and is not liable to be stayed on the basis of the conditions laid down in section 10 of the Civil Procedure Code. This facilitates expeditious disposal of the recovery suit filed by financial Institution against an unwilling customer. The Customer's suit for damages or accounts, filed against the financial institution, proceeds separately and is decided after the process of recording evidence is completed. This object of expeditious disposal of recovery suits under banking laws should not be lost sight of while deciding transfer applications. The purpose behind providing expeditious mechanism for disposal of banking cases under banking laws would be defeated if this aspect of the matter ignored while considering transfer applications for trial of both the suits together. It would be unfair to a financial institution whose rights and obligations can be expeditiously determined in summary proceedings to subject it to undergo rigors of a regular trial. Therefore, transfer of suit for its trial with other suit should not to be allowed where customer's application for leave to defend the suit has already been dismissed. In cases where leave to defend has been granted in a suit filed by a financial institution and the recording of evidence has not yet started or is at an initial stage, the High Court may allow transfer of the suit from one Banking Court to another or to its own banking jurisdiction for trial but not where customer's leave to defend application is still pending adjudication in a suit filed by financial institution. The High Court shall not mechanically exercise its power of transfer under section 5(3) of the 2001 Ordinance but shall allow the Banking Court to first dispose of the leave to defend application. Suit filed by a customer of a financial institution is generally for damages which inevitably require recording of evidence and ordering trial of the suit filed by financial institution in which leave to defend application is yet to be decided together with the suit filed by its customers would delay the disposal of suit filed by the financial institution that in turn would defeat the very object for providing a forum for expeditious disposal of recovery cases under banking laws. Hence, the order of transfer is not to be passed by the High Court as a matter of course on the ground that joint trial would prevent conflicting judgments. In the case of First Women Bank Ltd. (supra) the order of transfer of the suit passed by this High Court was affirmed. The suit which was transferred was filed by a financial institution in the year 1997 and the transfer application was filed in the year 2000. By which time it is quite likely that leave to defend may have been granted to the applicant and the suit of the First Women Bank was to proceed as a regular suit. Even otherwise, the reason which prompted transfer of the suit must be based on the consideration which could be peculiar to that case only. Mere seeking transfer on the ground preventing conflicting judgments is not enough in ordering transfer of banking cases.
9. We shall now advert to the second argument of Mr. Aijaz Ahmed that decision in First Women Bank Ltd. (supra) negate the provision of section 5(3) of 2001. Ordinance as section 5(3) only empowers High Court to transfer banking cases from one Banking Court to another and not to itself and, therefore, the precedent set by the Supreme Court in First Women Bank Ltd.'s case is per incurium and is to be ignored. This argument was advanced on the basis of the rule laid down in the case of Abdul Rehman v. Chaman Ara reported in PLD 1972 Kar. 164 wherein it was held that the value of precedents in interpreting statutory provision depends upon the elucidation that precedents provide. In other words, precedents remain binding only when the elucidation that they provide does not come into conflict with any statutory provision and when it does then in the words of Qadeeruddin Ahmed, C.J. "....It pales away into colourless non-entity because of the supremacy of statutes over precedents. Yet it is not easy to restrict the use of precedents. To strictly necessary occasions because secondhand thoughts are convenient to use as well as appear respectable since reference to precedents confer a look of learning to speech made in Court and to judicial writings. But we have to keep in mind that a precedent is not meant to be the exposition of any statutory. Provision as a whole; therefore, it contains the view of law relevant to the facts of a particular case. It has the angle which' the facts give to it and no two sets of facts, unless extremely simple or unique, are exactly the same; therefore, if many judgments are cited they present many angles of thought which come to the notice of the Court. They may or may not have essentially different facts but all of them are bound to have fine, yet sometimes, decisive variants in them which need to be duly noticed if it is necessary to use them. The necessity ordinarily arises if there is no ambiguity or uncertainty to be clarified or if there is disagreement of views between the Court and counsel or if there is a conflict in judicial opinion". The above quote of Qadeeruddin Ahmed C.J from the case of Abdul Rehman (supra) is a clear guide as to in what situation a precedent is to be regarded as not binding. However as we have already held in this case that Section 5(3) of the 2001 Ordinance empowers the High Court to transfer banking cases not only from one Banking Court to another but also from a Banking Court to the banking jurisdiction of a High Court which exactly was done in the case of First Women Bank Limited (supra), therefore, we do not consider that the decision in the case of First Woman Bank Ltd. Is in conflict with any statutory provision of law. We have already held in the above discussion is that while exercising this power of transfer of cases, the very object of achieving expeditious disposal of banking cases as provided in 2001 Ordinance must not be lost sight of and the circumstances discussed in this order for allowing or refusing transfer of cases must always be kept in mind while deciding transfer applications.
10. As regards the argument of Mr. Kazim Hasan that the summary procedure provided for disposal of cases under banking laws comes in direct conflict with newly incorporated Article 10A of the Constitution of Pakistan under the 18th Amendment to the Constitution, we are of the opinion that as the issue in hand is with regard to transfer of cases only, we leave the argument with regard to the effect of Article 10A of the Constitution on banking cases to be decided in appropriate proceedings.
11. In view of the above discussion, we are of the opinion that a High Court is fully empowered to withdraw a banking case pending in a Banking Court for its trial before its own bench hearing banking cases but while considering such transfer application, the High Court must ensure that the very purpose for which expeditious mechanism for disposal of recovery suits devised under banking laws, discussed in this opinion of ours, is not defeated. Office is directed to fix all transfer applications for hearing to be decided in accordance with the rule laid down in this order.