MUHAMMAD ANWAR KHAN KASI, CJ. --- This petition is directed against the order dated 05.05.2016, passed by learned Single Judge in-Chambers [Banking Judge] whereby Civil Misc. Application No, 514/2014 under Section 151, C.P.C., filed by respondent No, 1-Askari Bank Limited, in its suit for recovery of Rs, 1.307.030 Million under Section 9 of the Financial Institutions (Recovery of Finances)
Ordinance, XLVI of 2001 [hereinafter to be referred "the. Ordinance", for submission of affidavits of the witnesses, was allowed. For convenience and ready reference, operative paras-4&5 are reproduced hereunder:---
4. Indubitably, it is a banking suit filed under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001: for which a special procedure has been provided. Sub-section (4) of Section 13 ibid provides that the parties may file affidavits, which is to be treated as examination- in-chief. The said provisions of law is re-produced herein below for reference:-- "(4) Where leave to defend is granted and evidence is to be re'orded, the parties may file affidavits in respect of the examination-in-chief of any witness who is not to be summoned through the Banking Court, and where such affidavits are filed, the Banking Court shall give notice thereof to the other contesting parties and on the date fixed for recording evidence. shall, subject to such modifications as may be required for purposes of production and exhibiting of documents. or otherwise in accordance with law, treat the affidavit as examination-in-chief and allow the contesting parties an opportunity for cross-examination on the basis thereof"
The above provision of law is self-explanatory. As far as list of witnesses is concerned, learned counsel for the respondents has failed to point out any provision from the Financial Institutions (Recovery of Finances) Ordinance, 2001, which provides that the same must be filed and then is to be followed. Same is the position with the submission of documents.
Submission of affidavits and documents is quite in consonance with law.
5. Pursuant to above discussion the instant C.M.is accepted. Consequently Deputy Registrar (O. S) is directed to treat the affidavits as examination-in-chief and documents be also exhibited.
Respondents/defendants are required to cross-examine the witnesses of plaintiff. File be sent back to the Deputy Registrar (0.S), who is again required to conclude the evidence of both the parties within a period of two months. Both the parties are required to appear before the Deputy Registrar (0.S) on 16.05.2016."
2. Precisely, facts relevant for adjudication of present petition are that respondent No,
1. Askari Bank Limited, filed a suit for recovery of Rs, 1,307,030/- Million alongwith cost of funds, liquidated damages and future mark-up before learned Single Judge in Chambers/Banking. Judge, wherein petitioner was granted unconditional leave to appear and defend the suit vide order dated 15.2.2013, whereafter necessary issues were framed and parties were directed to submit list of witnesses, if any, within seven days vide order dated 3.4.2013. During the proceedings, respondent No, 1 filed two applications C.M. No, 175/2013 & 176 of 2013, one for extension in time for submission of list of witnesses and documents while the other for amendment of issues already framed. However, said applications were subsequently dismissed as withdrawn vide order dated 25.6.2015 {said order is not available on record}. Besides these two applications, respondent No, 1 filed another application under Section 151, C.P.C., C.M. No, 514/2014 for production of affidavits of two witnesses which was allowed vide impugned order.
3. Learned counsel pressed this petition, inter alia, on the grounds that the impugned order is not in consonance with the mandatory requirement of Order XVI, Rules 1 & 2, C.P.C.; there was a specific direction with regard to furnishing of list of witnesses within seven days respondent No, 1 failed to comply with the direction and not only that but subsequently also filed an application for extension of time but itself withdrew the said application, therefore, departure from mandatory provision would definitely entail penal consequences as suit, being under special statute, is to be proceeded under the Civil Procedure Code as contemplated in Section 7(2) of the Ordinance. It was the stance of the learned counsel, that procedure contained in Order XVI, Rules 1 & 2 was required to be followed while deciding application which has been overlooked by placing reliance upon Section 13(4) of the Ordinance. It is added that while allowing respondent No, 1 to tender affidavits besides exhibiting the documents, no reasons had been given which renders the order void. Learned counsel fortified his arguments by placing reliance upon case-laws cited as "Muhammad Anwar & others v. Mst. Ilyas Begum & others" [PLD 2013 Supreme Court 253], "Muhammad lkram Chaudhry & others v. Fed. of Pakistan & others" [PLD 1998 Supreme Court 103], "Brothers Sugar Mills Limited & others v. Punjab Cooperative Board for Liquidation & others" [2012 CLC Lahore 1369], "M/s. United Bank Limited through Authorized Attorneys v. Banking Court No, ll & 2 others" [2012 CLD Sindh 1556], "Sheikh Abdul Sattar Lasi & Another v. Judge Banking Court & 3 others" [2007 CLD Karachi 69], "Messrs Habib Bank Limited through Authorized Officers/Attorneys v. Messrs Victor Electronics Appliances Industries (Pvt.) Ltd. & another' [2011 CLD Karachi 1571] & M/s. United Industries Ltd., Faisalabad v. CIR (Appeal), Lahore" [2013 CLD 928].
4. The learned counsel for respondent No, 1 at the inception of arguments, objected upon maintainability of present petition. According to learned counsel, proceedings of suit are being conducted under a special statute, the Ordinance, which contains specific bar under Section 22(6) against filing of appeal, review or revision against interlocutory orders. It is also averred that remedy of appeal is provided against the final- judgment. therefore,, in view of the law laid down in "Habib Bank Limited v. Judge Banking Court & others [2015 CLD Lahore 1875], the writ petition in its present form is not maintainable. On merits, it is maintained that Section 13(4) unambiguously authorises a party to r -oxide affidavits and documents: it being special law will have preference over the procedure enunciated in the Civil Procedure Code; there was no specific provision in the Ordinance with regard to submission of list of witnesses within the stipulated period or within the timeframe fixed by the Court. Learned counsel further averred that purpose of Order XVI is not to deprive any party of his right to produce witnesses, which, otherwise, can be produced at the time of evidence by a party itself. Learned counsel also averred that petitioner was afforded opportunity to contest the suit unconditionally; proceedings are required to be concluded within shortest span of time: petitioner will have every right to cross-examine the witnesses and rebut the documents, sought to be tendered in evidence. Learned counsel, therefore, prayed for dismissal of petition by placing reliance upon case-laws cited as "Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore & another" [1976 SCMR 450], "Muhammad Raza Hayat Hiraj & others v. The 'Election Commission of Pakistan & others" [2015 SCMR 233], Habib Bank Limited v. Judge Banking Court & others" [2015 CLD Lahore 1875], Sheikh Muhammad Usman v. Judge Banking Court No, 1, Lahore & another [2015 CLD Lahore 257], "Syed Saghir Ahmed Naqvi v Province of Sindh through Chief Secretary, S&GAD. Karachi & another [1996 SCMR 1165], "Syed Tahir Hussain Mehmoodi & another v. Agha Syed Liaqat Ali & others" [2014 SCMR 637] & Muhammad Aslam v. Nazir Ahmed"
[2008 SCMR 942].
4. Heard and record perused.
5. The Financial Institutions (Recovery of Finances) Ordinance, XLVI 2001 is a special law which prevails over the general law on any point specifically dealt with in the special law. Section 13(4) of the Ordinance provides "where leave to defend is granted and evidence is to be recorded, the parties may file affidavits in respect of the examination-in-chief of any witness who is not to be summoned through the Banking Court, and where such affidavits are filed, the Banking Court, shall give notice thereof to the other contesting parties and on the date fixed for recording evidence, shall, subject to such modification as may be required for the purpose of production and exhibiting of documents, or otherwise in accordance with law, treat the affidavit as examination-in-chief and allow the contesting parties an opportunity for cross-examination on the basis thereof" The referred section of the special law explicitly provides opportunity to the parties to file affidavits after leave to defend is granted. There is no mention of the list of witnesses in said section, while the direction with regard to submission was not mandatory as reveals through the order which includes words "if any". In addition to this, the provision of special law will have preference over the general law applicable to the procedure under the Ordinance. There is no provision in the said Ordinance with regard to submission of list of witnesses within the stipulated period. Argument of the learned counsel that procedure contained in Order XVI, Rules 1 & 2, C.P.C. was required to be followed, is misconceived rather misplaced due to having specific provision Section 13(4) ibid in the Special Law, the Ordinance, 2001. When the special law provides opportunity to the parties to file their respective affidavits and documents after leave to defend is granted, it is to be followed and would be applicable in case of both sides and not to the plaintiffs' alone. To follow the provision of Or d e r XVI, Rules 1 & 2, C.P.C., while dealing with a suit under the Ordinance, would mean to render Clause 13(4) of the Special Law redundant. The provisions of Order XVI, Rule 1. C.P.C. do not fall within purview of "sheer technicality" but are strictly in accordance with principles of natural justice that a party should have knowledge of witnesses of its rival, so as to enable same to test veracity of those witnesses and prepare cross-examination in advance, but at the same time, it is to be kept in view that said principle is mentioned nowhere in the Ordinance under which proceedings are being conducted and not only this but specific provision mentioned above also provides opportunity to the parties of file their respective affidavits and documents with eight of cross- examination. The objection with regard to departure from mandatory provision of Order XVI, Rules 1 & 2, C.P.C., in presence of specific provision 13(4) in the special law Ordinance, 2001, retains no force and is repelled accordingly.
7. In addition to above Section 22 provides remedy of appeal while Section 22(6) provides .'no appeal, review or revision 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 (11) of Section 15 or sub- section (7) of Section 19." The interlocutory order would merge into final order against which remedy of appeal is provided where aggrieved party may agitate all his -grounds, therefore, on this score too, present petition cannot be held to be proceed able.
8. The sequel of above discussion is that petitioner's case lacks merits, inter alia, due to reasons that he was granted unconditional opportunity to defend the suit; Section 13(4) explicitly provides right to the parties to file their respective affidavits with documents; no specific provision barring filing of affidavits beyond stipulated period exists in the Ordinance; provision of Order XVI, Rule 1&2, C.P.C. will have no overriding effect upon provision of Section 13(4) of the Ordinance due to proceedings being conducted under the special statute and special provision will prevail; by allowing the respondent No, 1 to file affidavits and exhibit the documents, no prejudice will be caused to the petitioner who will have right to cross-examine the <u>witnesses</u> and to rebut the documents as well. No remedy of appeal is provided against interlocutory order and the petitioner will have a right of appeal where he can raise alibis objections including the one argued in support of this petition. Resultantly, petition is dismissed with no orders as to costs.