' AJMAL MIAN, J.-The above appeal has been filed under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, hereinafter referred to as the Ordinance, against the order, dated 19th December, 1983 passed by the learned Special Court (Banking) in Suit No, 274/83.
2. The brief facts leading to the filing of the above appeal are that the appellant filed the aforesaid suit on 26th September, 1983 inter alia for the recovery of Rs, 8,58,750.89 under the Ordinance before the learned Special Court (Banking) in respect of the loan advanced by the appellant to respondent No,
1. In the above suit, it was also prayed that the pledged goods, namely, 900 bales referred to hereinbelow may be sold and the sale proceeds may be paid to the appellant against the above claim. It may be observed that the above 900 bales were agreed to be sold by the appellant to Messrs Brooke Bond (Pakistan) Limited for a sum of Rs, 4,19,580. It is the case of the appellant that when the above 900 bales were taken on 27th December, 1982 for weighment to the independent weighment bridge for effecting the delivery, it was discovered that the actual weight was lesser than the wight disclosed at the time of the pledge and, therefore, Messrs Brooke Bond (Pakistan) Limited reduced their offer to Rs, 2,83,235. The detail of the above pledged goods with weighment disclosed and the weighment discovered is as follows :-{{TABLE TEXT}} No, of Bales Description of goods Weight disclosed Actual weight discovered 50 Peneumafil/Roving 238 mds. 147 mds.
Comber 600 Cardfly/Dropping 2,850 mds. 1,751 mds.
250 Hard Waste 1,000 cwts. 817 cwts.
' However, the case of respondent No, 1 is that the above goods were tampered with and factually respondent No, 1 handed over the goods at the time of the pledge to the appellant's Muccadams Messrs Mughal & Sons after weighment and the weight was the same which was disclosed by the respondent No,
1. It is not necessary for the purpose of this appeal to go into the above controversy.
It seems that alongwith the suit, the appellant also filed an application under section 151, C. P. C. It may be advantageous to reproduce the same hereinbelow which reads as follows :- "It is prayed on behalf of the plaintiff abovenamed that for the reasons disclosed in the accompanying affidavit this Hon'ble Court be pleased to pass the following orders pending the hearing and final disposal of the above suit :-
(a) Appoint the Nazir/any officer of this Hon'ble Court as Commissioner to carry out an inspection/survey and weighment of the goods said to compromise of (a) Pneumafil/Roving Comber, (b) Cardfly/Dropping, (3) Hard Waste pledge by defendant No, 1 with the plaintiff and presently lying at Godown No, 3, S/69, S. I. T. E. Karachi.
(b) Direct and authorise the Commissioner to obtain the services/ assistance of a reputed surveyor in Karachi and order that Messrs Mughal & Sons be associated in the said inspection/survey/ weighment.
(c) Direct and authorise the Commissioner to sell the pledge goods mentioned above by public auction/private offers and direct that the sale proceeds be deposited in this Hon'ble Court.
(2) It is further prayed that pending the hearing and final disposal of this application ad interim orders be passed in terms above."
3. The above application was supported by an affidavit in which inter alia it was pointed out that there was a substantial difference between the declared weight and the actual weight of the pledged goods and that the condition of the goods was deteriorating. The above application was opposed by respondents Nos. 1 to 6 inasmuch as a counter-affidavit was filed, in which it was averred that factually the goods had already been handed over to Messrs Brooke Bond (Pakistan)
Limited. It was also averred that at the time of handing over of the goods the weight and the value was verified by the appellant's Muccadams and that there was no discrepancy at all. It was also averred that the appellant had created discrepancy with all motive after manoeuvring in the bales.
The learned Special Court (Banking) after hearing the parties dismissed the above application by its order, dated 19th December, 1983. The appellant being aggrieved by the above order has filed the present appeal.
4. When the above appeal had come up for katcha peshi, the office has raised objection as to its maintainability in view of section 12 of the Ordinance. The appeal was admitted subject to the above objection.
5. Mr. Liaquat Merchant in support of the above appeal has vehemently urged that the above appeal is competent under section 12 of the Ordinance. On the other hand, Mr. Mansoorul Arfin, the learned counsel for the respondents Nos. 1 to 6, has contended that since the order under appeal is an interlocutory order and as the matter is still pending before the learned Special Court (Banking), the appeal is clearly barred by proviso to subsection (1) to section 12 of the Ordinance. It may be advantageous to reproduce hereinbelow section 12 of the Ordinance, which reads as follows :- Section 12. Appeals.-(1) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within 30 days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed : ' Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.
(2) An appeal under section (1) shall be on any one of the following grounds, namely :-
(a) the decision being contrary to law or to some usage having the force of law, or
(b) the decision having failed to determine a material issue of law or usage having the force of law, or
(c) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits.
(3) An appeal may be preferred under this section from a decision made ex parte.
(4) An appeal under this section shall be heard by a Bench of not less than two Judges.
(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment-debtor, at the discretion of the High Court, furnishes security equal in value to such amount."
' It may be noticed that any person aggrieved by any order, judgment, decree or sentence of a Special Court has the right to file appeal against such order, judgment, decree or sentence within a period of 30 days in the High Court. It may further be noticed that proviso to subsection (1) of section 12 lays down that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. It may also be pointed out that subsection (2) of section 12 of the Ordinance provides the grounds on which an appeal can be filed, whereas subsection (3) makes it clear that an appeal may be preferred under the above section from a decision made ex parte. It may further be appointed out that subsection (4) provides that an appeal under the above section shall be heard by a Bench of not less than two Judges. It may also be observed that subsection (5) of section 12 lays down that no appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment-debtor at the discretion of the High Court, furnishes security equal in value to such amount.
6. Mr. Liaquat Merchant in furtherance of his above contention has submitted that under subsection (1) of section 12 an appeal is also competent against any order and not merely against a judgment, decree or sentence. It is further submitted that the words "any order" are of wide import and will cover an order which may have been passed for deciding any application. To reinforce the above contention, he has referred to the definition of "order" given in section 2(14) of the C. P. C., 1908, and also to a number of decisions on the construction of the words "any case which has been decided by any Court" employed in section 115, C. P. C.
7. It may be observed that clause (14) of subsection (2) of section 2, C. P. C. Defines the word "order" as means the formal expression of any decision of a civil Court which is not a decree.
' Mr. Liaquat Merchant has referred to the following cases on section 115, C. P. C. :- "(1) Abdul Shakoor v. Abdul Rasool PLD 1963 (W. P.) Kar. 356, in which a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, while construing words, 'case' decided that it includes even an interlocutory order.
(ii) S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W. P.) Kar. 149, in which a Full Bench of 7 Judges of the erstwhile High Court of West Pakistan while considering the scope of section 115, C. P. C. Held (Majority view) that the decision of the case will include interlocutory order.
(iii) Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507, in which a Division Bench of the Hon'ble Supreme Court of Pakistan while construing the phrase 'case decided' held that it would include a decision of Court subordinate to High Court in respect of any state of facts after judicially considering the same and that such decision need not necessarily dispose of the whole matter or suit.
(iv) Sukumar Chatterjee v. Kiran Chandra Mitter AIR 1964 Cal. 439, in which a Division Bench of the Calcutta High Court held that the word 'case' as used in section 115, C. P. C. Is wider in connotation than the term 'suit' or 'appeal' and it takes in interlocutory order within its ambit. It was further held that an ing or amending a pleading comes within the ambit of expression 'case decided' and is consequently revisable under section 115, C. P. C.
(v) Major S. S. Khanna v. Brig. F. J. Dillon AIR 1964 SC 497, in which the Supreme Court of India while construing the expression 'case' held that it is a word of comprehensive import and includes civil proceedings other than suits and is not restricted by anything contained in section 115 to the entirety of the proceedings in civil suit. It was further held that to interpret the expression `case' as an entire proceeding only and not part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant.
8. In our view, the above cases have no application to the instant case. There cannot be any cavil to the propositions that the words "case decided" used in section 115, C. P. C. Will include a decision on an application. It may be observed that there was some controversy as to the construction of the words "case decided" but the preponderance of the view has always been in Indo-Pak during pre-partition period that the above phrase is of wide import as to include an interlocutory order on an application in order to attract supervisory jurisdiction of the High Court under section 115, C. P. C.
In Pakistan this controversy has been settled inter alia by the above Full Bench case of the West Pakistan High Court and also by the above case of the Supreme Court of Pakistan. In section 12 of the Ordinance, if there would not have been the above proviso to subsection (1), the above cited cases on section 115, C. P. C. Would have relevancy to the, point in controversy but the proviso which provides as observed hereinabove that' no appeal shall lie from an interlocutory order, which does not dispose of the entire case before the Special Court, has made the above-cited cases on section 115, C. P. C. Irrelevant.
9. Mr. Liaquat Merchant then cited the following cases on section 3 of the Law Reforms Ordinance (XII of 1972), 1972, in which subsection (3) of section 3 was couched somewhat in similar language as the proviso to subsection (1) of section 12 of the Ordinance, which provided no appeal shall lie under subsection (1) or subsection (2) of section 3 from an interlocutory order or an order which does not dispose of the entire case before the Court :- (0 Eastern Company (Private) Limited Lahore and 2 others v. Mst. Gul Begum and 7 others PLD 1980 Lah. 69, in which a Division Bench of the Lahore High Court held that prohibition provided for in subsection (3) of section 3 of the Law Reforms Ordinance is only applicable to the cases which fall under subsection (1) and subsection (2) of section 3 of the aforesaid Ordinance. It was held that the above bar to an appeal provided under subsection (3) of section 3 of the Law Reforms Ordinance was not applicable to an appeal against an order passed under the Companies Act, 1913. It was also observed that section 202 of the Companies Act confers right of appeal against a decision.
(ii) Industrial Development Bank of Pakistan v. Messrs Larkana Textile Mills Limited and others PLD 1982 Kar. 1, in which a Division Bench of this Court while construing the provision of section 3 of the Law Reforms Ordinance, 1972, and section 202 of the Companies Act held that an appeal was competent against an order of the learned Company Judge accepting the bid for purchase of the factory of the Company under liquidation. Reliance was placed in the above case on the cases AIR 1921 Mad. 286, AIR 1961 Mys. 1 and AI R 1955 Bom.
355.
10. The above cases to some extent support the contention of Mr. Liaquat Merchant that even an interlocutory order, may be of such nature which may be in fact a final order for the purpose of determining a particular point in issue which may go to the root of the matter. Even if we C were to apply the above principle to the present case, the appellant's case is not covered by the above principle as admittedly the appellant's prayer for the sale of pledged goods is still sub judice before the Special Court (Banking) as in the plaint one of the prayers contained in clause (b) is for sale of the pledged goods.
11. Mr. Liaquat Merchant has also referred to the case of Fida Hussain v. Messrs Queensland Insurance Company Limited (1) and the case of Hyesons v. National Bank of Pakistan Karachi (2). In the first case a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, while construing the word "judgment" used in clause (10) Letters Patent (Lahore) held that it does not mean a final judgment. It was further held that one of the criterion of finding out, whether an order is a judgment within the meaning of clause (10) of the Letters Patent is to see, whether the Court has decided any material issue between the parties finally affecting the subject-matter of the suit.
(1) PLD 1959 (W. P.) Kar. 216 (2) PLD 1972 Kar. 174
12. In the second case a Division Bench of the erstwhile High Court of Sind and Baluchistan modified the order of sale of the pledged goods passed under Order XXXIX, rule 6, C. P. C. By consent of the parties. The above first case has no application as pointed out hereinabove that the question of sale of the pledged goods is still in issue before the learned Special Court (Banking). So, also the second case is not applicable as the learned Special Court (Banking) has not held that it has no power to grant the application.
13. We are also of the view that the definition of the word "Order" given in clause (14) of subsection
(2) of section 2, C. P. C. Cannot be imported for the purpose of considering the words "any order" used in subsection (1) of section 12 of the Ordinance. In the absence of any definition of the above words in the Ordinance, the Court has to give ordinary meaning which these words carry. Even otherwise, as observed hereinabove are qualified by the proviso that no appeal shall lie from an interlocutory order, which does not dispose of the entire case before the Special Court.
14. Mr. Mansoorul Arfin has referred to the following cases :-
(i) Muhammad Ayub Butt v. Allied Bank of Pakistan, Peshawar and others PLD 1981 Pesh. 138, in which the facts were that Messrs Allied Bank of Pakistan had filed 8 suits for the recovery of the loan amounts under the Ordinance before Special Court (Banking) at Peshawar, in which the guarantor who was impleaded as a defendant. He filed applications for dismissal of the suits against him on the ground that there had been illegal conversion of the pledged goods on that part of the plaintiff bank. The above applications were dismissed. The guarantor being aggrieved by the above order filed revision applications under section 115, C. P. C. The Division Bench of Peshawar High Court dismissed the above revision applications. While repelling the contention of the learned counsel for the applicant that other laws including the C. P. C. Would be applicable in view of section 3 of the Ordinance, it was held that all other laws referred to in section 3 would be applicabe subject to express provision of the Ordinance. It was further held that even an appeal was not competent against an interlocutory order and, therefore, section 115, C. P. C. Could not have been pressed into service.
(ii) Muhammad Ayub Butt v. Allied Bank of Pakistan, Peshawar and others PLD 1981 SC 359, which is an order declining petitions for leave against the above judgment of the Peshawar High Court PLD 1981 Pesh.
138. The Hon'ble Supreme Court of Pakistan while dismissing the petitions for leave inter alia observed as follows :- But as discussed above, already the provisions of the Civil Procedure Code continue to apply to the extent that they had not been ousted by the provisions of sections 11 and 1 which effectively bar appeals etc. Of interlocutory orders. Thus, even without the specific ouster of the provision of section 115 of the Civil Procedure Code an interlocutory order cannot be challenged, It seems to us that with a view to securing expeditious disposal cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decisions of the Special Court should be open to appeal before the High Court. This is evident from subsection (1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The, cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including F the High Court. Thus, on consideration of the provisions of the Ordinance itself, the revisional jurisdiction of the High Court in regard to such orders is excluded.
' It may further be observed in this connection that according to section 3 the provisions of the said Ordinance shall be in addition to and save as hereinafter expressly provided not in derogation of any other law for the time being in force. The words hereinbefore underlined clearly shows that in case of any inconsistency between the provisions of the Ordinance and those of other laws the former shall prevail. It has been seen that section 11 of the Ordinance read with section 12 thereof also come into conflict with the provisions of, section 115 of the Code of Civil Procedure. Section 3 of the Ordinance, therefore, does not allow the High Court to exercise the revisional jurisdiction vesting in it under section 115 of the Code of Civil Procedure in respect of orders made by a Special Court.
The Lahore High Court in Azhar Hussain v. Chartered Bank Limited, 1981 CLC 516 has also taken the same view and we consider quite rightly.
' Even if a Special Court is treated as a Court subordinate to the High Court, it would not advance the case of the petitioner. The Ordi-, nance is a special law. Section 4 of Code of Civil Procedure provides that in absence of any specific provision to the contrary nothing' in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under another law for the time being in force. Undoubtedly, a Special Court is a Court of special jurisdiction and sections 11 and 12 of the Ordinance preclude the High Court from exercising its revisional jurisdiction qua the orders of the Special Court. It would, therefore, folio that in view of provisions of sections 11 and 12 of the said Ordinance read with section 4 of the Code of Civil Procedure the orders of the Special Court cannot be assailed before the High Court in revisio by resorting of the provisions of section 115, C. P. C. This aspect of the case has also been considered by one of us (Nasim Hasa Shah, J.) in Wajahat Ali Hasnie's case and the relevant observations are as follows."
' The above judgment of the Supreme Court of Pakistan in fact of all force is applicable to the instant case and provides complete answers to the various contentions raised by Mr. Liaquat Merchant.
15. It was in the end submitted by Mr. Liaquat Merchant that this Court may direct the learned Special Court to order the carrying of survey of the pledged goods by an independent surveyor as this may be relevant for the purpose of final decision of the pending suit. Mr. Mansoorul Arfin was not agreeable to the above request of Mr. Liaquat Merchant. It will suffice to observe that the appellant may move a fresh application before the learned Special Court for the above prayer as their previous application was mainly for the sale of the pledged goods though a request for the survey was also made, the learned Special Court shall dispose of such application if moved in accordance with the law.
16. For the aforesaid reasons the appeal has no merits and, therefore, it is dismissed with no order as to costs. However, we direct the learned Special Court (Banking) to dispose of the above suit within four months from the receipt of a copy of this judgment.