This is a writ petition filed by the petitioners under Article 9 of the Provisional Constitution Order, 1981, for a declaration that order dated 28-7-1981 passed by the Special Judge, Banking (II), Lahore, respon--dent No. 1 directing the petitioners to deposit the amount in suit instituted by Messrs Allied Bank of Pakistan Limited respondent No. 2 against them is without jurisdiction and lawful authority and as such is ineffective against them.
2. Briefly stated the facts giving rise to the writ petition are that on 11-7-1979, a suit for recovery of Rs.
5,77,529'87 was instituted by respondent No. 2 against the petitioners in the Court of District Judge, Multan, which after the promulgation ofthe Banking Companies (Recovery of Loans) Ordinance, 1979, was transferred to the Special Judge, Banking (II), Lahore respondent No. 1. A notice was received by the petitioners from respondent No. 1 to appear in his Court on 18-5-1981. On 28-7-1981, petitioners were granted leave to defend the suit on the condition that they should deposit the amount in suit before 26-9-1981.
3. The petitioners have challenged the aforementioned order passed by respondent No. 1 on 28-7- 1981 on the ground that no summonses in Form No. 4 in, Appendix "B" as required by Order XXXVII, rule 2 (1), C. P. C. Were issued to them after the transfer of the case. Notice Annexure "C" issued to the petitioners by respondent No. 1 did not meet the legal requirements and as such he had no authority to pass the impugned order.
4. Respondent No 2 has contested this petition and the leaned counsel appearing on its behalf has raised a preliminary objection that the writ petition filed by the petitioners is not legally competent as they have assailed an interlocutory order passed by respondent No 1 during the course of proceedings pending before him under the Banking Companies (Recovery of Loans) Ordinance, 1979 which specifically provides that the order passed by the Special Court established under section 5 of the Ordinance shall not be called in question except by filing an appeal to the High Court but there shall be no appeal from an interlocutory order which does not dispose of the entire case before the Special Court. Learned counsel for the petitioners, on the other hand has submitted that the provisions of sections I1 and 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 on which reliance has been placed by the learned counsel for respondent No. 2 do not affect the constitutional jurisdiction of this Court and that even an inter--locutory order passed by the Special Court can be challenged under the extra--ordinary jurisdiction of the High Court if it has been passed without lawful authority.
6. Before examining the legality or otherwise of the impugned order passed by respondent No. 1, it is necessary to consider the legal question raised by the learned counsel for respondent No. 2. There is no dispute about the legal proposition that the Constitutional jurisdiction of the superior Courts remains unaffected by any law made by the Provincial or Federal Legislature but it may be noted that the Superior Courts, while exercising Constitutional jurisdiction, have always kept in view that this jurisdiction should not be invoked where it will have the effect of defeating and deflecting the legislative intent as for instance, where a remedy is provided. Under the law against the final order passed by a tribunal but finality is attached to the interlocutor orders passed in the course of proceedings before it, the superior Court would not interfere with the interlocutory orders in the exercise of their writ jurisdiction unless these orders have the effect of disposing of the entire case before the Tribunal. In this connection, reference may be made to the decisions of the Supreme Court in Muhammad Ali v. Chief Administrator of Auqaf (1) where during the pendency of an application under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 before the District Court for a declaration that the property in question was not a Waqaf property, the petitioner filed a writ petition in the High Court challenging the action of the Chief Administrator of Auqaf and the writ jurisdiction was invoked on the ground that the Ordnance did not provide a remedy by way of injunction to restrain the Chief Administrator Auqaf from interfering with the possession of the property, which according to the petitioner's claim was his private property, the High Court refused to interfere in the matter and rejected the writ petition. Petition for Special Leave to Appeal was also dismissed by the Supreme Court and it was observed that the Ordinance, while providing remedy under section 7, had ousted the jurisdiction of the District Judge and High Court to issue injunction against the Chief Administrator, Auqaf to restrain him from assuming control of th:.5property as Waqaf property under section 6, which clearly demonstrated the intention of the law-giver that the assumption and control of the property by the Chief Administrator, Auqaf under the Ordinance should continue to remain uninterrupted till the disposal of the question of title by the civil Court.
7. In the case of Mumtaz Hussain alias Bhutta v. Chief Administrator, Auqaf (2) the legal position noticed above in Muhammad Ali's case was further clarified and it was observed :-
(1) 1972 SCMR 297(2) 1976 SCMR 450 "As the said Ordinance has taken away the right of the petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendencyof the proceedings in the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express - provisions of the statutory law."
8. A somewhat similar situation had arisen in respect of an order passed by the Controller under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 directing the tenant to deposit arrears of rent and future rent during pendency of ejectment proceedings. No appeal lay against such order under section 15 of the Ordinance. A question arose whether the aforementioned order, which undoubtedly was an interlocutory order, could be challenged under the Constitutional jurisdiction of the High Court. In Muhammad Sated v. Mst. Farah-tul-Fatima (1), a Division Bench of this Court held that Constitutional jurisdiction could not be invoked against such order as it would defeat and deflect the legislative intent which was evident by the fact that the interlocutory order had not been made appealable under the Ordinance. In another case reported as Aman Ullah v. Mukhtar Ahmad (2), a Division Bench of this Court refused to interfere with the order of the Controller whereby he did not permit the tenant to summon witnesses in an ejectment application filed by the landlord under the West Pakistan Urban Rent Restriction Ordinance, 1959 as it was observed that if every order of Controller was allowed to be challenged by a writ petition, it would defeat the object of the Ordinance which was to ensure quick disposal of cases relating to disputes between landlords and tenants and would also amount to abuse of Constitutional jurisdiction.
9. It is,' thus, clear from the legal position noticed above, that the/ Constitution jurisdiction of the superior Courts cannot be invoked where it1 would have the effect of defeating or deflecting the legislative intent. They Banking Companies (Recovery of Loans) Ordinance, 1979 has been promulgated for securing and repayment of loans of Banking Companies through Special Courts to be established under the Ordinance. Although in the exercise of civil jurisdiction the Special Courts are required to follow the summary procedure provided for under Order XXXVII, C. P. C.
(section 7 (2) of the Ordinance), provisions relating to appeal, revision and review as contained in the Code of Civil Procedure, 1908 have not been made applicable to orders and judgments passed by such Courts under the Ordinance. Section 11 of the Ordinance provides that subject to the provisions for appeal in section 12, any order or judgment passed by a Special Court shall not be called in ques--tion. Section 12 of the Ordinance makes provision for appeal against the order, judgment and decree passed by a Special Court to the High Court but, no appeal is competent against an interlocutory order which does not dispose of the entire case before the Special Court. It may be noticed that all appeal which were pending before the Supreme Court or the High Court at the commencement of the Ordinance against the interlocutory orders which did no dispose of the entire case, stood transferred to the Special Court by virtue of section 13 (a) of the Ordinance. It is clear that the object of the Legislature to take away the right of appeal in case of interlocutor):, order is to ensure quick disposal of cases by the Special Court. This object cannot be defeated by circumventing the previsions of the Ordinance by invoking the Constitutional jurisdiction of the High Court which is available only where no adequate and efficacious remedy is provided by law to the aggrieved persons. As noticed above, an appeal has been provided against the final order, judgment and decree passed by the Special Court under section 12 of the Ordinance. It, therefore, cannot be said that no adequate or efficacious remedy is provided under the Ordinance to the persons aggrieved by the final order, judgment and decree which may be passed by the Special Court. The question of interference with interlocutory order passed by the Special Court, in exercise of writ jurisdiction by the High Court has also been considered in a case recently decided by this Court which is reported as International Food Centre v. United Bank 1982 CLC 108In that case also, the petitioner had challenged the order of the Special Court whereby he was allowed leave to defend the suit subject to the payment of Rs. 2 lacs in Court within a period of two months or furnishing Bank guarantee for that sum and to furnish ordinary security in respect of balance of the suit amount. It was held that interference with the interlocutory order by recourse to Constitutional jurisdiction was bound to delay the proceedings before the Special Court and would also defeat and deflect the object ,of the Legislature. The writ petition was accordingly dismissed by the Court.
(1) PLD 1914 Lab. 149(2) 1979 CLC 199
10. Learned counsel for the petitioners has drawn my attention to two judgments delivered by my learned brother Muhammad Munir Khan, J. In Writ Petition No. 670/81 on 25-10-1981 and Writ Petition No. 574;81 on 18-11-1981. In both these cases, interlocutory orders passed by the Special Judge, Banking (I1), Lahore granting leave to the petitioners to defend the suits filed against them subject to payment of the amount in suits in Court were struck down as being illegal and without jurisdiction in exercise of Cons--titutional jurisdiction. Learned counsel for the petitioners has particularly referred to the following observations made in these cases :- "I am of the considered opinion that if this Court -is satisfied that an interlocutory order suffers from infirmities affecting the jurisdiction of a Court or Tribunal, then it would be failing in its constitutional duties to refuse to interfere and allow the Court or Tribunal to pass illegal orders under the cover of Special Law because once the Court comes to a conclusion that the Court or Tribunal has exceeded jurisdiction by flouting the provisions of relevant law, has violated the principles governing the exercise of judicial discretion, acted arbitrarily, passed an illegal and unfair order without applying its mind, it would, then. Be the duty of this Court while sitting in its constitutional duties to strike down such order regardless of the fact that the interference may defeat the legislative intent i. e. a speedy and efficacious method for the recovery of loans advanced by the Bank.".
With utmost respect to my learned brother Muhammad Munir Khan, J: I find myself unable to subscribe to the views expressed above in view of the pronouncements of the Supreme Court and the High Court in the cases noticed above that the superior Courts would not interfere with the inter--locutory orders in the exercise of their Constitutional jurisdiction if such interference would defeat or deflect the intent of the Legislature. In my humble view, the interlocutory orders passed by a Special Court under the provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979 cannot be interfered with by recourse to Constitutional jurisdiction of this Court particularly when it has specifically been provided in the Ordinance that no appeal shall lie against such order unless it disposes of the entire case before the Special Court. A conditional order allowing leave to the defendant tot defend the suit cannot be considered as an order which disposes of the entire case before the Special Court and as such, it is not appealable. Obviously, such order cannot be allowed to be questioned in exercise of the Constitution jurisdiction of this Court as it would defeat the Legislative intent of expeditious disposal of cases by the Special Court set up under the Banking Companies (Recovery of Loans) Ordinance, 1979.
11. The upshot of the above discussion is that the present writ petition filed by the petitioners is not competent and the same is hereby dismissed. No order is made as to costs.