Through this petition the Petitioner has impugned order dated 14.02.2013, passed by the learned Single Judge in Chamber. The impugned order has been passed under Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO) and is a leave granting order.
2. The facts the case are that the Petitioner filed a suit under Section 9 of the FIO for the recovery of Rs. 71457523/- from the Respondents. The Respondents Nos. 1 to 4 filed an application for grant of leave to appear under Section 10 of the FIO. The Petitioner then filed its replication. Learned Single Judge in Chamber while exercising jurisdiction under the FIO granted unconditional leave to the Respondents Nos. 1 to 4 through his order dated 14.2.2013.
3. Learned counsel for the Petitioner argued that the Impugned Order has been passed by the learned Judge in Chamber in complete disregard of an unreported order issued on 6.2.2013 by a Division Bench of this Court. He also argued that there was no lawful justification to grant leave to the Respondents on account of non-availability of the statement of the C.D. Account. Learned counsel for the Petitioner was asked at the very outset how this petition was maintainable given that Section 22 of the FIO specifically bars the filing of an appeal, review or revision against an order which grants leave or rejects leave! Learned counsel argued that Section 22(6) of the FIO expressly bars filing of an appeal, review or revision against the order accepting or rejecting an application for leave to defend, In stitch a situation a writ petition would be maintainable if the order is illegal or without jurisdiction as no other remedy was available to the Petitioner. Learned counsel has placed reliance on Sheikh Abdul Sattar Lasi and another v. Judge Banking Court (2007 CLD 69), Messrs United Bank Ltd. Through Authorized Attorneys v. Banking Court No. II and 2 others (2012 CLD 1556), United Bank Ltd. v. Presiding Officer Banking Court No. 2, Karachi and 6 others (2011 CLD 931) and Agricultural Development Bank of Pakistan and other v. Yar Muhammad and others (2004- CLD 1084).
4. Arguments heard. Record perused.
5. ' The order impugned before us is an order which grants unconditional leave to the Respondents.
Section 22(i) of the FIO provides as follows:--- "22. Appeal.- (1) Subject to sub-section (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentenced or final order prefer an appeal to the High Court Section 22(6) provides as follows:- "(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under sub-section (i 1) of Section 15 or subsection (7) of Section 19".
A bare reading of Section 22(1) and (6) shows that no appeal, review of revision lies against an order , which accepts or rejects an application for leave to defend. Therefore, the FIO has explicitly barred the remedy of appeal, review or revision against such an order, The question that arises is whether in such a situation a Constitutional petition is maintainable by a person aggrieved by an order granting or rejecting leave. Section 10 of the FIO provides for the right to file an application for leave to defend, In terms of Section 10 (3) an application for leave to defend is in the form of a written statement and contain a summary of the substantial questions of law and fact. For] which evidence needs to be recorded.
"In the present case, the Banking Court has decided the application for leave to defend the suit of Respondents Nos. 5 and 6 in doing so has struck off the names of these Respondents from the list of Defendants. Against such order the appeal is expressly barred by law and thus there is no warrant for entertaining a Constitutional petition as it will, not only amount to circumvention the law but will also frustrate the same. Yet again, the impugned order is passed by a Judge of this Court which is not a person in terms of Article 199(5) of the Constitution, for this reason also Constitutional petition will not be maintained. The petition, being not maintainable, is therefore dismissed."
Therefore, we hold that the general rule is that no Constitutional petition would lie against an order granting or rejecting leave.
6. The learned counsel for the Petitioner has placed reliance on 2012 CLD 1556 (supra), In the said case a Constitutional petition was filed against the order in which the leave was denied. The Hon'ble Court held that after dismissal of the application for grant of leave to defend the law envisages that the suit should be decreed forthwith, therefore, at the stage when only a decree can be passed in a suit ah order for consolidation of the suit with any other suit in which evidence is to be recorded defeats the object of Section 10(11) of the FIO. The order of consolidation shall also have the effect of nullifying the order whereby the application for leave to defend the Suit was dismissed. Since the impugned order passed' by the Banking Court has violated Section 10(11)- Of the FIO; the Impugned order was found not sustainable in law and liable to be set aside. The Hon'ble Court held that a Constitutional petition is maintainable on the ground that the Banking Court failed to exercise, the jurisdiction which was .Vested, to it under Section 10(11) of the FIO.
Learned counsel has also relied upon 2011 CLD 1571 (supra); ?For the said case leave 1 was also not granted. The Hon'ble Court held that Constitutional jurisdiction could, be invoked against such an order to correct a wrong in a case where no other remedy was available In 2007 CLD 9 (supra) \\ was held that in cases of grave . Violation in following the substantive, provision of law an order rejecting or granting leave could be challenged in a Constitutional petition.
7. We have reviewed the cases cited by the Learned counsel for the Petitioner ..And find that the common ground in all the cited cases is one, of illegality or lack of jurisdiction. To our minds these cases represent the exception to the general rule being that no Constitutional petition would lie against an order granting or rejecting leave. We are of the opinion that a Constitutional petition would be maintainable in exceptional circumstances, where the Petitioner could show a blatant illegality in The Order,, such that the Banking Court has not followed the expressed mandate of law or that the Banking Court has exercised its powers outside the jurisdiction conferred, In such a situation in order to meet the ends of justice and to prevent a gross miscarriage of justice a Constitutional petition would be maintainable.
8. In the , instant case the learned Judge in Chamber found that the debt entries to the Defendant's account did not disclose the cheque numbers and .Did not disclose the account which was credited. Furthermore that the statement of the , current Account ,from where the withdrawal was said to have taken was not available on the record. During the course of the proceedings the Plaintiff sought permission to place on record the statement of account of the Defendant No. 1 through an application under Order 6, Rule 17, C.P.C. The learned Judge in Chamber held that since the relevant documents were not available on the record and since the Plaintiff wanted to file its statement of account a case of unconditional leave to defend was made out. We have heard the learned counsel of the Petitioner, at length and we are of the opinion that he was unable to point out any illegality with the impugned order. We note that the Petitioner had moved an application under Order 6, Rule 17, C.P.C, for filing an amended plaint. Through the said application the Petitioner wanted to place further documents with his plaint. We find that the filing of the application under Order 6, Rule 17, C.P.C, to amend the plaint and further document the plaint itself suggests that leave should be granted as the Petitioner has failed to satisfy, its burden under Section 9 of the FIO.
9. The other argument stressed by , the learned counsel was that the impugned order is in absolute disregard of an order of the Division Bench on the issue of CD account statement. We note that leave has been granted for several reasons in the impugned order, In any event each case has to be seen on its own merits and the grant of leave under 1 Section 10(8) is based upon the substantial questions raised by the Defendants viz-a-viz the case and documents filed by the Plaintiff with the plaint. Section 9 of the FIO places heavy burden on the Financial Institution to file alongwith its plaint a statement of account and all other relevant documents relating to the grant of finance. Thereafter Section 10 provides that the Defendant shall file an application for leave to defend which shall be in the form of a written statement and which shall contain a summary of the substantial question of law as well as fact in respect of which evidence needs to be recorded. The application for leave to defend shall be accompanied by all documents which in the opinion of the Defendant support the substantial question of law and fact. The Plaintiff is given an opportunity to file a reply to the application for leave to defend. Therefore, in terms of Sections 9 and 10 of the FIO the plaintiff has to put across its best case and the Defendant has to place his entire case before the Court. The Court then has to satisfy itself, in the first instance, as to whether any substantial question of law and fact is in issue between the parties. This first look principle gives the Court an opportunity to form an opinion based on the documents filed before it, whether evidence needs to be recorded in order to settle the dispute between the parties. Therefore, an order granting leave merely gives the defendant an opportunity to lead evidence to defend its case. As such no right of the plaintiff is prejudiced. It simply means that plaintiff does not have an open and shut case on the basis of which a decree can be passed, and that the plaintiff will have to prove its claim through evidence.
10. In the case of the Petitioner the impugned order finds that the entries relied upon did not provide sufficient data to show that the. Disbursement and utilization of the finance had been made by the Respondent. There is no illegality with this order and it does not fall within the ambit of the