' YAHYA AFRIDI, J. --- Through this single judgment, this Court shall render its opinion on the three References, as common questions of law have been raised therein. The particulars of which are as under:
1. Tax Reference No. 46/2010. (Commissioner of Inland Revenue (Legal) Regional Tax Office, Peshawar v. M/s. Sher Akbar Khan Work Force Contractor, Par Hoti, Mardan). (Tax Year 2004)
2. Tax Reference No. 47/2010. (Commissioner of Inland Revenue (Legal) Regional Tax Office, Peshawar v. M/s. Sher Akbar Khan Work Force Contractor, Par Hoti, Mardan. (Tax Year 2003)
3. Tax Reference No. 48/2010. (Commissioner of Inland Revenue (Legal) Regional Tax Office, Peshawar v. M/s. Sher Akbar Khan Work Force Contractor, Par Hoti, Mardan. (Tax Year 2005)
' Questions of law.
2. The common questions of law raised in all the three References are as under:-
(i) "Whether on the facts and circumstances of the case the learned Tribunal was justified in holding that the receipts from labour contract do not fall within the ambit of Section 153(1)(c) without taking cognizance of the fact that the definition of services as provided in Section 159(9) only includes services of skilled/professional persons i.e. Accountants, architects, dentists, doctors, engineers, interior decorators and lawyers and that too otherwise than as an employee?
(ii) Whether on the facts and circumstances of the case the Tribunal was justified in holding that the receipts from labour contract fall within the ambit of Section 153(1)(b) when the legislature has intentionally included the services of only skilled/professional persons in the definition of services as provided in Section 159(9) of the Income Tax Ordinance, 2001?
(iii) Whether on the facts and circumstances of the case the Tribunal was justified in holding that the receipts from labour contract do not relate to contractual receipts falling within the ambit of Section 153(1)(c) of Income Tax Ordinance, 2001?
(iv) Whether on the facts and circumstances of the case the Tribunal was justified to ignore the explanation of the word "services" in pursuance of Section 153(9) that services includes the services of accountants, architects, dentists, doctors, engineers interior decorators and lawyers, otherwise than as an employee?
(v) Whether on the facts and circumstances of the case the Tribunal was justified to classify providing of labour force under the contract as services and holding that providing labour force is the same as rendering of services whereas the words "rendered" and "provided" connote two different meanings?".
FACTS
3. The brief and essential facts, which are relevant for rendering our opinion on the questions of law raised herein have been appropriately recapitulated in the decision of the First Appellate Authority in terms that:- "These appeals have been filed by an individual, deriving income as Labour Contractor provided services to Pakistan Tobacco Company Limited. Brief facts leading to these appeals are that Returns/Statement u/s. 115(4) for Tax year 2003 to 2005 were filed and claimed refund of Rs.
33,276/-, Rs. 420,078/- and Rs. 352,408/respectively and the declared versions were accepted u/s. 120(1) of the Income Tax Ordinance, 2001. Subsequently, the Additional Commissioner (Audit) observed that the appellant has wrongly filed Statement u/s. 115(4) under normal law, as the payment received by the appellant on account of Labour contract is a final tax liability.
According, Assessments were amended u/s. 122(5A) of the Income Tax Ordinance, 2001 and the appellant was assessed under Presumptive Tax Regime and tax deducted was treated as Final Tax liability."
"Call notice was issued to response AR of the appellant attended the office and pleaded the case as per grounds of appeal. The main issue in the case is that the appellant is a Labour Contractor providing labours under a contract to Pakistan Tobacco Company. The appellant filed his Returns/Statement u/s. 115(4) under normal law and claiming Refund of Rs. 334,276/-, Rs.
420,078/- and Rs. 352,408/- for Tax Years 2003, 2004 and 2005 respectively. The assessing officer has rejected this arrangement with his findings that It was only through Finance Act, 2005 that "providing of services" was made a subject of clause (b) of sub-section (1) of Section 153, which is effective for the tax year 2006 onwards, while the relevant period being earlier to this amendment, does not suffer this change of law.
"Services" includes the services of accountants, architects, dentists, doctors, engineers, interior decorators and lawyers, otherwise than as an employee."
' I have examined the case in detail and I feel no hesitation to endorse the findings of the assessing officer as he has rightly amended the order u/s. 122(5A) of the Income Tax Ordinance, 2001, to retrieve the loss of revenue."
' The present respondent being aggrieved challenged the decisions of the Commissioner (Appeals) before the learned Appellate Tribunal, which was accepted. Hence, the present References moved by the Revenue.
SUBMISSIONS
4. The worthy counsel for the Revenue vehemently argued that the case of M/s. Sher Akbar Khan, came within the purview of clause (c) and not (b) of subsection (1) of Section 153 and thus the tax deducted shall be the final tax as envisaged under sub-section (6) of Section 153. He further argued that the services provided by M/s. Sher Akbar Khan were not professional hence, did not come within the purview of clause (b) of sub-section (1) of Section 153 and thus the decision of the worthy Tribunal warranted to be corrected. In this regard, reliance was sought on M/S. Premier Mercantile Services (Pvt.) Ltd.'s case (2007 PTD 2521).
5. In rebuttal, the worthy counsel for M/s. Sher Akbar Khan contended that the decision of the worthy Tribunal was in accordance with law, as amendments introduced in Section 153 were explanatory in nature. The same were to have retrospective effect. In particular, he emphasized that the amendments introduced vide Finance Act, 2005, finally introduced the term providing of which catered for the services rendered by M/s. Sher Akbar Khan. Thus, the amendments introduced in 2005 were to have retrospective effect and would apply to the case of M/s. Sher Akbar Khan for the Tax Years 2003 to 2005, which was the subject of consideration of the present references. In this regard, the worthy counsel sought reliance upon M/s. Ever Green Trading Company's case (2011 PTD 549), M/s. Rehman Enterprises case (2008 PTD 1897), M/s. Criss Gas' case ( 2010 PTD 2349), Khurshid Ahmed's case (2008 PTD 1243), and Mehboob Ali's case ( PLD 1976 SC 483).
OPINION.
6. The questions of law raised in the instant references revolve around the scope, extent and the 'true import of the amendments introduced in Section 153 of the Ordinance. In order to appreciate the implication of the amendments introduced in the said provision, it would be appropriate to trace the stages through which the provisions of Section 153 supra have evolved, the same are reproduced as under: STAGE-I.
Income Tax Ordinance, 2001, as originally enacted (1st July 2001-till 30th June, 2002).
153. Payments for goods and services.---(1) Every prescribed person making a payment in full or part including a payment by way of advance to a resident person or permanent establishment in Pakistan of a non-resident person---
(a) for the sale of goods;
(b) for the rendering of professional services;
(c) on the execution of a contract, other than a contract for the supply of goods or the rendering of professional services, shall at the time of making the payment, deduct tax from the gross amount payable at the rate specified in Division ill of Part Ill of the First Schedule. (emphasis provided)
STAGE-II Finance Act, 2002 (1st July 2002-till 30th June, 2005).
153. Payments for goods and services.--- (1) Every prescribed person making a payment in full or part including a payment by way of advance to a resident person or permanent establishment in Pakistan of a non-resident person
(a) for the sale of goods;
(b) for the rendering of services; (The word Professional' was omitted)
(c) on the execution of a contract, other than a contract for the supply of goods or the rendering of professional services, shall at the time of making the payment, deduct tax from the gross amount payable at the rate specified in Division Ill of Part Ill of the First Schedule.
6). The Tax deducted under this Section shall be a final tax on the income of a resident person arising from transactions referred to in clause (a) or (c) of sub-section (1).
9). In this section,- "prescribed person" means "Professional Services" includes the services of accountants, architects, dentists, doctors, engineers, interior decorators and lawyers, otherwise than as an employee. "Sale of goods" includes a sale of goods for cash or on credit, whether under written contract or not. (emphasis provided)
STAGE-III Finance Act, 2005 (1st July, 2005-onwards).
153. Payments for goods and services.--- (1) Every prescribed person making a payment in full or part including a payment by way of advance to a resident person or permanent establishment in Pakistan of a non-resident person---
(a) for the sale of goods;
(b) for the rendering of or providing of services; (The word 'providing of was inserted)
(c) on the execution of a contract, other than a contract for the sale of goods or the rendering of or providing of services, shall, at the time of making the payment, deduct tax from the gross amount payable at the rate specified in Division Ill of Part Ill of the First Schedule.
(6). The Tax deducted under this Section shall be a final tax on the income of a resident person arising from transactions referred to in clause (a) or (c) of sub-section (1).
(9) In this section,--- "prescribed person" means
(a) The Federal Government;
(b) A company other than a small company, as defined in clause (59A) of Section 2;
(c) An association of persons constituted by, or under law;
(d) A foreign contractor or consultant; or
(e) A consortium or joint venture; or
(f) An exporter or an export house for the purpose of sub-section (1A), "Services" includes the services of accountants, architects, dentists, doctors, engineers, interior decorators and lawyers, otherwise than as an employee. (emphasis provided)
7. Before this Court passes any findings on the scope and extent of the legislative amendments introduced in Section 153 of the Ordinance, it would be pertinent to consider the admitted factual aspects of the present references. The same are as follows:--- I. The period under consideration of the present references is Tax Year 2003 to 2005; 1st July, 2003 till 30th June, 2005.
II. The applicable provisions of Section 153 of the Ordinance, would be, as stated hereinabove in Stage-11; i.e. After the amendment introduced in Section 153 by Finance Act, 2002, till the amendment introduced therein vide Finance Act, 2005 (1st July 2002 till 30th June 2005); IIl. The provision of Section 153 supra, as it stood after the amendment introduced therein vide Finance Act, 2005, would only take legal effect from 1st July 2005, which prima facie is not relevant to the Tax Years in issue in the instant references.
8. In this background, this Court is to consider the nature, scope and the legal effect of the amendments introduced in Section 153 of the Ordinance, to determine as to whether the same are to have prospective or retrospective effect.
9. Reviewing the stages through which the provisions of Section 153 have transformed through legislative amendments, it is but clear that the true intent of the legislature was to expand the scope of the term "services" provided under clause (a) of sub-section (1) of Section 153 of the Ordinance. It is noted that initially, vide Finance Act, 2002, the word, "professional" was omitted from the said sub-section and finally vide Finance Act, 2005, in order to achieve the true intent of the legislature, the words "providing of were inserted therein. It appears that, initially after the amendment introduced vide Finance Act, 2002, the intent of the legislature to expand the term of services was not appreciated in its true sense and thus the need arose to further clarify the intent, by inserting the words "providing of vide Finance Act, 2005. At this stage, it would be very pertinent to note that even Federal Board of Revenue made clear its position vide FBR Circular No. 1 of 2005 (Income Tax) dated 5.5.2005, inter alia, which provided that:- "Under Section 153, withholding tax on paym en to a resident person or a permanen establishment in Pakistan of a non-resident person, for rendering of services is adjustable.
However, similar paym ents or on the execution of contract attract a withholding tax which is the final tax on the income from such transactions. Prior to 2002, this provision applied to "Professional services" only. The term "professional services" was defined to include the services of accountants, architects, dentists, doctors, engineers, interior decorators and lawyers other than an employee.
However, with the omission of the word "professional" from the law in 2002, an erroneous impression was created that the meaning of term "services" had been restricted. In order to dispel this impression, a clarificatory amendment has been made and in Section 153(1)(b) and 153(1)(c) the word "or providing of" have been inserted. The effect of this amendment shall be to make withholding tax on all types of services adjustable." (emphasis provided)
10. Legislative measures introduced to clarify a position or remedy any defects in the pre-existing law are known as declaratory or remedial legislation. The amendments introduced in Section 153 of the Ordinance, vide Finance Act, 2002, and Finance Act, 2005, can surely be termed as declaratory and remedial legislation, as the sole intent was to clarify the confusion caused in the preexisting provisions of Section 153.
11. It is by now well-settled principle of interpretation of statutes that, remedial or declaratory legislation has to be rendered retrospective effect unless a contrary intention was clearly intended by the legislature and thus expressly or impliedlv provided therein.
12. The meaning, scope and effect of declaratory and remedial legislation has been very aptly described by the Sindh High Court in Reckit & Colman's case (2001 PLC 245), wherein the worthy Court seeking reliance upon renowned treatises on interpretation of statutes; Crawfords Interpretation of Law, Craies on Statute Law and various judgments of the Superior Courts of our jurisdiction and that of India, has explained the principle in terms that:- "Thus, the declaratory Acts and the remedial Acts are in fact similar in nature, but are differentiated with reference to the system of law prevailing in U.K., where common law is also practiced and recognized alongwith the statute law. The removal of any doubt pertaining to common law is categorized as a declaratory Act and when any doubt is removed or any explanation is added to statute law it is called remedial Act. Thus, with reference to the system of law prevailing in Pakistan, the declaratory Acts and the remedial Acts are in fact, of the same nature and the two expressions are loosely used to describe the same nature of enactment.
With reference to the system of law in Pakistan, any amendment or enactment of law primary purpose of removing the doubt, clearing an ambiguity or adding an explanation would in fact be a remediable Act ' As already held by the Hon'ble Supreme Court of Pakistan in the judgments cited above, the entire law contained in the Ordinance is beneficial in nature, therefore, the provision under consideration is also a beneficial and welfare legislation and thus, is required to be interpreted liberally and in a way which has the effect of advancing the relief and suppressing the mischief.
It is further held that the provisions contained in proviso are explanatory in nature and an explanation added by the legislature is deemed to be a note of caution indicating the real intention of the legislature and purpose of the enactment as well as removal of any doubt. Thus, the provision is clarificatory as well. The presumption is that the legislature while enacting any law or making any amendment is conscious of the circumstances prevailing at the time of enactment/amendment/substitution, and therefore, it is held that the legislature was aware that questions were being raised about the exclusion of a worker from the purview of the terms employee used in the Ordinance as defined in Section 2(8)(f) and a view was prevailing which was prejudicial to the interest of worker and was not in consonance with the avowed object and purpose of legislation, therefore, an amendment was inserted whereby it was clearly provided without any ambiguity that once a person/worker is included, within the definition of employee under the Ordinance, he shall continue to be so, notwithstanding crossing the ceiling of wages.
Thus, the law curative in nature as well. Thus, the proviso to Section 2(8)(f) of the Ordinance being a part of definition Section is declaratory and at the same time it is beneficial, curative, remedial and welfare legislation and has to be when retroactive effect."
' In another case, M/s. Dewan Cement's case (2010 PTD 1717), the Sindh High Court refused to render retrospective effect to an amendment declaring the same not declaratory or remedial in nature.
The worthy Court seeking reliance upon various pronouncements of the superior Courts, came to the conclusion that:--- "The overall view of above-cited judgments on the point of beneficial legislation, being give retrospective effect, is that it should be remedial and curative and that its purpose should be to correct the existing law, redressing an existing grievance or introducing regulations conducive to public good and remedies defect in the preexisting law. The remedial statutes are usually looked upon with favour by the Courts and liberally construed. The law is to be given retrospective operation if such operation does not destroy or disturb the vested right, impair the obligations of contract create new liabilities, violate due process of law or contravene some other constitutional provisions. Thus; it has to be seen for application of beneficial notification being given retrospective effect that it should not disturb vested right, impair obligations of contract, create new liabilities, violate due process of law or contravene some other Constitutional provisions. If these, rights/obligations, liabilities and law are not disturbed or violated, the notification can be given retrospective effect.
' In order to consider this notification as a beneficial and remedial and given retrospective effect, in the first place Court will have to come to conclusion that previous notification which was rescinded by this notification was not correct law or was not conducive to public good."
(emphasis provided)
' More recently, the Islamabad High Court in M/s. Travel Waljis's case (2015 PTD 550) has very eloquently after reviewing the relevant case-law and various commentaries on interpretation of statutes concluded in terms that:---
7. There is consensus that a remedial enactment is intended to provide relief which was not already provided for. The remedy is to obviate a defect, anomaly or hardship, and is designed to bring the existing law in line with the intention of the legislature. Such enactments may also be explanatory in nature or may intend to clarify an existing enactment.
8. The other principles enunciated in relation to a remedial enactment are briefly mentioned as Remedial enactments are liberally construed in favour of the assessee.
(ii) As a general rule, enactments operate prospectively and retrospective legislation is looked upon with disfavour', unless the language explicitly indicates the intention of the legislature to be otherwise any doubt is to be resolved in favour of retrospective operation.
Retrospectively cannot operate to destroy, affect or disturb vested rights or if it will cause to create new liabilities.
(iv) The enactment, though remedial in nature, will not apply retrospectively to alter or effect proceedings and orders which have been determined by having attaining finality.
(v) Unless otherwise provided explicitly, the 'remedial' enactment will operate retrospectively in those cases wherein proceedings are pending at the time of the amendment e.g. If an appeal is pending before the Tribunal or a Reference before a High Court under Sections 131 and 133 respectively. In the absence of express words, passed and closed transactions cannot be reopened by the operation of an amendment which is of a 'remedial' nature."
' As pointed out by the worthy counsel for M/s. Sher Akbar Khan, it is noted that the issue in hand in the present references was considered and decided by this Court in M/s. Ever Green Trading Company's case (2011 PTD 549). The assessee in the said case was deriving income as a carriage contractor and the income related to Tax Year 2005 (1st July, 2004 till 30th June, 2005). This Court, while deciding the scope and extent of amendment introduced in the provision of Section 153 of the Ordinance, reiterated that:--- "8. Retrospectively of amendment brought about through Finance Act of 2005, however, requires some consideration. Before year 2002 clauses (b) and (c) of sub-section (1), Section 153 of Income Tax Ordinance, 2001 read as under:- "(b) for the rendering of professional services;
(c) on the execution of a contract, other than contract for the supply of goods or the rendering of professional services."
' Through Finance Ordinance, 2002 word "Professional" was omitted. The purpose behind such omission appeared to be to enlarge the scope of word "services" and not to curtail the same.
However, such deletion/omission had the opposite effect and was interpreted as if the meaning of term "services" had been restricted. To remove such erroneous impression, an amendment was brought inserted. After such amendment, clauses (b) and (c) aforesaid read as under:--- "(b) for the rendering of or providing of services; (c)on the execution of a contract other than a contract for the sale of goods or the rendering of or providing of services."
' The stance of the Department itself is that it was a clarificatory amendment and that the purpose of the same was to remove an erroneous impression, meaning thereby, that it was always meant to be as such but due to erroneous interpretation, created by deletion/omission of word "professional", the provisions were being given a restrictive meaning. A clarificatory amendment in a fiscal Statute by very definition operates retrospectively because it clarifies ambiguity. The Courts have always treated clarificatory amendments as retrospective amendments even in cases where the purpose behind such amendment was to nullify earlier judgments. The sole purpose behind such clarificatroy amendment is to change the legal position after an inconvenient, improper or uncalled for interpretation is put on such provision.
Unless it is a mere clarification and not a change in substance retrospectively of such amendment cannot be questioned.
9. In this view of the matter, learned Commissioner Income Tax (Appeals) was justified in observing that "the amendment of 2005 dated 5.7.2005 does not mean that such cases are excluded because they are previous to the amendment. Even in the previous period since 2002, the scope of services had been broadened to encompass these realities than mere professional reality in section, which had been amended in 2005".
(Emphasis provided)
' It is also worthwhile to note that the opinion rendered by this Court in M/s. Ever Green Trading Company's case was based on a decision of a Division Bench of Lahore High Court in M/s. Rehman Enterprises case (2008 PTD 1897).
' Now, referring to M/s. Premier Mercantile Services (Pvt.) Ltd.'s case (2007 PTD 2521), the case referred to by the worthy counsel for the Revenue, it is noted that. The worthy Court, while considering the withholding income tax of a stevedoring services paid by the said company in the Tax Year 2003, was declared to fall under clause (c) of subsection (1) of Section 153 and thus under sub-section (6) of Section 153 was to be adjudged on presumptive and not under the normal tax regime. The august Court rendered its opinion in terms that:- "9. From a 'combined reading of these subsections it emerges that initially professional services and then services have been defined to include the services of accountants, dentists, doctors, engineers, interior decorators and lawyers only and dour not include other services. We cannot subscribe to the arguments of the learned counsel for the respondent that all services will fall under clause (b) of sub-section (1) of Section 153 as the services which have been defined in sub-section (9) are services of those persons who require professional qualification to provide these services and, therefore, according to the rule of ejusdem generis which is one of the principles of interpretation, only such type of professional services which require the person to have a professional degree and will, therefore, not fall in the definition of services which have been excluded from the provisions of clause (c). It is an admitted fact that all the receipts are contractual receipts received for providing stevedoring services. We would also like to point out that though C.B.R. Does not figure in the hierarchy of the forums whose interpretation or explanation is binding, but, if a law has been correctly interpreted by C.B.R., it cannot be rejected for this reason only. Even, otherwise, as far as the respondents are concerned they are bound under Section 214 of the Income Tax Ordinance, 2001, to follow the directions of the Central Board of Revenue although the directions of the C.B.R. Are not binding on the Appellate Authorities. The Tribunal has relied on its earlier judgment reported as 2002 PTD 228 without realizing that in Section 50(4) of the Income Tax Ordinance, 1979 which is para materia with Section 153(1), services were not defined and there was a C.B.R., Circular which apparently was followed in the earlier judgment wherein it was said that services under contract will also not fall within the presumptive tax regime.
10. In view of the above discussion, we are of the considered opinion that the receipts from business of stevedoring fall within the ambit of Section 153(6) and tax deducted on such receipts is final discharge of tax liability of these receipt and , therefore, the order of the Tribunal holding otherwise cannot be sustained." (Emphasis provided) 'sed therein, as the matter related to Tax Year 2003. Hence, the ratio decidendi, of the said case is clearly distinguishable from the facts and circumstances of the present cases.
' In the present case, the Revenue is insisting that M/s. Sher Akbar Khan, who is providing hour to M/s. Pakistan Tobacco Company Ltd., has entered into a contract would fall within the purview of clause (c) of sub-section (1) of Section 153. While the assessee M/s. Sher Akbar Khan is adamant to assert that he is providing labour force to M/s. Pakistan Tobacco Ltd., hence his case would fall within the purview of clause (b) of sub-section (1) of ection 153. There is no doubt, that the stance taken by the Revenue would have held the field had this Court not come to a conclusion that the amendments introduced in Section 153 were remedial and declaratory in nature, and thus, to have retrospective effect. But, once this Court has opined that the amendments introduced in Section 153 vide Finance Act, 2005, would have retrospective effect, the same would thus, apply to Tax Years 2003 to 2005.
' As far as, the extent of the effect of retrospectively is concerned, the same would apply till the /is is not conclusively concluded. There can be no mathematical time limitation for the application of retrospectivity. This matter came up before the Indian apex Court in Rai Ramkrishna's case (AIR 1963 S.0 1667), wherein it was held that:- "We do not think that such a mechanical test can be applied in determining the validity of the retrospective operation of the Act. It is conceivable that cases may arise in which the retrospective operation of a taxing or other statute may introduce such an element of unreasonableness that the restriction imposed by it may be open to serious challenge as unconstitutional; but the test of the length of time covered by the retrospective operation cannot by itself, necessarily be a decisive test. We may have a statute whose retrospective operation covers at comparatively short period and yet it is possible that the nature of the restriction imposed by it may be of such a character as to introduce a serious infirmity in the retrospective operation of the statute though long, will not introduce any such infirmity. Take the case of a validating Act. If a statute passed by the legislature is challenged in proceedings before a Court, and the challenge is ultimately sustained and the statute is struck down, it is not unlikely that the judicial proceedings may occupy a fairly long period and the legislature may well decide to await the final decision in the said proceedings before it uses its legislative power to cure the alleged infirmity in the earlier Act. In such a case, if after the final judicial verdict is pronounced in the matter the legislature passes a validating Act, it may well cover a long period taken by the judicial proceedings in Court and yet it would be inappropriate to hold that because the retrospective operation covers a long period, therefore, the restriction imposed by it is unreasonable. That is why we think the test of the length of time covered by the retrospective operation cannot by itself be treated as a decisive test." (Emphasis provided)
' As this Court has come to the conclusion that the amendment introduced in Section 153 vide Finance Act, 2005, is to have retrospective effect and the matter regarding refund could have been agitated by M/s. Sher Akbar Khan, under Section 170 supra, the stance of the Revenue would not be acceptable and that of M/s. Sher should restore the suit of the Bank as the Applicant's valuable rights are at stake.
3. Learned counsel for Respondents/Defendants No. 2 to 6 and 8 argued that the instant application is not maintainable. States that the order dated 23.2.2010 is a final order against which an appeal lies and not an application under Order 9, Rule 9 of the C.P.C. Further states that the conduct of the Applicant Bank is apparent from the order sheet. The case was not fixed for arguments on the PLA but the main case was fixed for arguments by the Plaintiff. Since they did not appear on several dates, the Court dismissed the suit for non-prosecution on 23.2.2010. Learned counsel further argued that the contention of miscalculation of time by the Applicant Bank is misconceived as the cause list does not reflect any fixed time when the case was to be heard. The Counsel should have been present and his contention that he came to the Court at 11.00 a.m. Being the banking time, as per practice is misconceived. The learned counsel has relied upon the cases titled Javed Ahmad and another v. United Bank Limited and 12 others (2005 CLD 615) and Shahid lqbal v. Punjab Labour Appellate Tribunal (2010 PLC 237). Learned counsel further argued that the Applicant does not have any authorization appended with this application and there is no description name, title of the Applicant. Learned counsel argued that this is an independent application which has not been filed in the suit, hence an authorization is required.
4. I have heard the learned counsel for the parties and have gone through the record available on the file.
5. The basic issue in this application is its maintainability. The suit was dismissed for non- prosecution on 23.2.2010. The order sheet reflects that PLA Nos. 95-B and 96-B of 2003 were argued on 20.5.2008. Thereafter it was fixed for arguments of the plaintiff. In the meanwhile, the plaintiff filed C.M. No. 194-B/2008. Since the plaintiff did not appear on several dates, the application was dismissed on 15.1.2010 and on the same date the main case was fixed for hearing for 23.2.2010. The order sheet shows that on 23.2.2010 no one appeared on behalf of the plaintiff. Hence the suit was dismissed for non-prosecution. From the record it is evident that the suit was not pending for arguments on the PLA. The PLAs have been argued and the case was fixed for arguments by the plaintiff. Since the Applicant Bank did not appear nor did its counsel appear on three consecutive dates being 12.11.2009, 10.12.2009 and 15.1.2010, hence the Court dismissed the suit for non- prosecution on 23.2.2010. The impugned order of 23.2.2010 is a final order in terms of Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO, 2001). There is no banking suit present before this Court, therefore the appropriate remedy for the Applicant is to file an appeal under Section 22 of the FIO, 2001. Section 7(2) of the FIO, 2001 provides that the Banking Court shall follow the procedure laid down in the C.P.C. In respect of those matters where procedure has not been provided for in the FIO, 2001. Section 27 of the FIO, 2001 provides for the finality of orders issued by the Bank and has been made subject to Section 22 of the F10, 2001 which means a final order of the Banking Court is appealable under Section 22 of the FIO, 2001 and the application Order 9, Rule 9 of the C.P.C. Is not applicable.
6. In view of the aforesaid, this application is dismissed.