1. ' SHAFIUR RAHMAN, J.-The petitioner against whom an ex parte decree for a sum of Rs, 2,77,700 has been passed by Special Judge (Banking), Lahore on 26-4-1983, seeks leave to appeal against the judgment of the Lahore High Court, dated 12th of March, 1984 whereby a constitutional petition filed by him challenging that ex parte decree, was dismissed in limine.
2. ' The petitioner was the Manager of Allied Bank of Pakistan, Karachi. He was posted in the year 1982 as Bank Manager, New Street Branch, Rawalpindi. On 29-4-1982 his handling of the cash, the account, the documents was found such as to necessitate the lodging of First Information Report, dated 12th of May, 1982 (registered on 16-5-1982) under sections 420, 468, 471 and 409, P. P. C. Read with section 5 of the Prevention of Corruption Act. Thereafter on 20th of September, 1982, a civil suit was filed in the Court of Special Judge (Banking), Lahore for the recovery of disputed sum i,e, Rs, 2,77,700. In the plaint, it was disclosed that the account of Sultan Khusro showed a debit of the disputed amount payable to the Bank of which the petitioner had executed, signed and delivered a letter of guarantee, dated 1-3-1982 in favour of the plaintiff-Bank whereby he guaranteed the payment of any advance made to Sultan Khusro and agreed that 'his liability to the Bank was joint as well as several as that of the principal debtor. The Special Judge (Banking) proceeding under Order XXXVII, C. P. C. Passed an ex parte decree on 28th of November, 1982. It was. However, set aside on a move by the petitioner on 26th of February, 1983. After the setting aside of the ex parte decree, the petitioner did not apply for permission to contest or defend the suit. The attention of the petitioner's Mukhtar-i-Khas and his counsel was drawn to it, even then nothing was said as to why the permission to defend the suit should be given. An application was hurriedly drafted on behalf of the petitioner but it disclosed no ground whatsoever and the one given did not appear to be relevant. Denying the petitioner's the right to defend the suit ex parte decree was passed by the Special Judge (Banking) the same day.
3. ' The petitioner invoked the constitutional jurisdiction of the High Court and it appears that the grounds urged before the learned Judge were that the Special Judge had no jurisdiction in the matter as the petitioner was not himself the borrower nor any negotiable instrument was involved in the case. It was also urged that as the criminal case had been lodged in respect of the same transaction, the only civil remedy available to the Bank was one of damages and compensation and not of recovery of amount as loan.
4. ' The learned Judge without expressing any opinion on the merits of the case refused to exercise his discretion tinder Article 9 of the Provisional Constitution Order as adequate remedy was available to the petitioner to file an appeal under section 12 of the Banking Companies (Recovery of Loans)
5. Ordinance, 1979. It was held that : - "Even if it is assumed that the learned Special Judge (Banking) has no jurisdiction to pass the impugned decree, that circumstance by itself does not debar the petitioner to prefer an appeal to the High Court within thirty days of the said decree under section 12 of the Ordinance, The petitioner having failed to file any appeal within the period of limitation cannot be allowed to circumvent the aforesaid provision by invoking the constitutional jurisdiction of this Court."
6. ' Following the decision of the Lahore High Court in Muhammad Aslam Bajwa v. Federation of Pakistan (1) , the petition was dismissed.
7. ' The learned counsel for the petitioner took before us two grounds-the first one was that the petitioner was not a borrower and on that account the provisions of Banking Companies (Recovery of Loans) Ordinance were inapplicable to him. The provisions of that Ordinance, the forum of Special Judge (Banking) and the procedure prescribed in Order XXXVII, C. P. C. We're not at all available for dealing with the petitioner. In support of this contention, and as a second ground reference is made to the criminal case filed against the petitioner to demonstrate that the amount involved could not be treated as loan or due on negotiable instrument. It was according to the learned counsel not at all necessary for him to avail of the alternate remedy of appeal because for want of jurisdiction and the challenge to the authority of the Special Judge (Banking) to deal with the matter. In support he has cited The Murree Brewery Co. Ltd. v. Pakistan (2), Ali Muhammad v.
8. Hussain Bakhsh and others (3) and Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty (4) among others.
9. The objection to the jurisdiction of a Tribunal or authority may be on account of the incompetence of the Tribunal itself, or on account of the inapplicability of the law governing the situation or on account of the existence or non-existence of jurisdictional fact necessary for assuming jurisdiction.
10. In the first category will be objections which will ordinarily not be raised before the Tribunal or higher authorities in the hierarchy but will have to be brought directly, as was done, for judicial review. The same will be the position with regard to the second category of objections where the objection is to the incapability of law. Where, however, the objection relates to the existence or non-existence of special relationship between the parties before the Tribunal and not to the Tribunal itself, an inquiry into the jurisdictional fad must ordinarily take place before that Special Tribunal itself. Like any other finding, the finding on jurisdictional fact, the one recorded by Special Tribunal will not be conclusive but it has to be recorded on proper material by the Tribunal so as to enable its judicial review. {{FOOT NOTE}}
(1) PLD 1974 Lah. 545 (2) PLD 1972 SC 279
(3) PLD 1976 SC 37 (4) PLD 1961 SC 119 {{FOOT NOTE}} ' In the case before us going deep into the plea of the petitioner one finds that it relates to a jurisdictional fact, namely, whether the petitioner falls within the definition of a borrower or not for the purposes of the Ordinance. It is not the case of the petitioner that on the facts stated in the plaint namely the execution of letter of guarantee accepting liability to the Bank jointly as well as severally with the principal debtor does not bring the petitioner in the category of borrower. The contention is that there is no such guarantee or that even if it be there, the respondent by repudiating it or by filing a criminal case against the petitioner cannot utilise it for recovery of the debt from the petitioner. This is essentially a question of fact, a disputed question a matter requiring evidence. This cannot and should not ordinarily be examined in the constitutional jurisdiction for the first time by the High Court. It had to be enquired into by the Tribunal established for the purposes of determining relationship between the parties and adjudicating on their rights and liabilities. A judicial review after such a finding is recorded would have been more fruitful and in consonance with the practice and procedure of judicial review.
11. ' The anxiety of the Special Judge (Banking) to get something from the petitioner for allowing him his right to defend the proceedings would appear from the following contents of the judgment :- "Neither of the defendants applied for permission to contest the suit till today. When the case was called today and this thing was brought to the notice of the defendant No, 2's Mukhtar-i-Khas and the counsel then they put in this application on the second call. It has not been mentioned as to why they want to have the permission to contest the suit. It was not denied that the defendant No, 2 had concern with the loan or for the providing of the guarantee for the loan. What has been stated was that the Supreme Court did not like deciding cases on technical grounds. It has been considered with utmost respect to the highest judicial authority. It was the question of law. The law governing the constitution of this Court provided that the defendant should seek permission to contest the suit within 10 days of his service of the process of this Court. That has not been done.
12. Then again I would have granted the permission to the party for contesting the suit even though the application was time-barred. Some ground would have been asserted for the purpose in the application. Even orally nothing has been said as to why the permission should be given. In view of this I reject this application."
13. The learned counsel during the course of argument urged that a permission to defend under Order XXXVII, C. P. C. Could only be granted on terms and the terms would have been very onerous for the petitioner and would have amounted to denying the relief itself. We do not find any such compulsion in Order XXXVII, C. P. C. That a permission to defend could only be granted on terms and not unconditionally. Such an anticipation and apprehension on the part of the petitioner was totally unwarranted.
14. ' We find that the petitioner has rightly been held to be undeserving of any relief in the constitutional jurisdiction of the High Court. Leave to appeal is, therefore, refused.