1. ' The office has fixed the following applications for hearing in Court today:--
(1) C.M.A. No. 2992/83 (under Order XXXIX, rules 1 and 2),
(2) C.M.A. No. 2993/83 (under Order XI, rule 14),
(3) C.M.A. No. 3125/83 (under section 10) and
(4) C.M.A. No. 3126/83 (under Order VII, rules 10 and 11 read with section 151, C.P.C.).
2. ' The first two applications are filed by the plaintiff while the last mentioned two applications are filed by defendant 1. Apart from these applications defendant 2 has filed an application under Order XIX, rule 2 read with section 151, C.P.C. No.3327/83) which is fixed for orders. The learned counsel for the defendants 1 and 2 Mr.S.A. Sarwana, at the hearing of the above applications stated that he does not press his application under Order XIX, rule 2 read with section 151, C.P.A. (C.M.A.
3. No.3327/83) which is accordingly dismissed as withdrawn with no order as to costs. Out of above- stated 4 applications fixed for hearing today, I will first take up C.M.A. No.3126/83 filed by defendant 1 under Order VII, rules 10 and 11 read with section 151, C.P.C. for rejection of the plaint. The learned counsel for the defendants 1 to 3 jointly contend that the jurisdiction of this Court to entertain the present suit is barred under section 6(4) of the Banking Companies (Recovery of Loans) Ordinance, 1979, as the suit is between 'borrower' and a 'banking company' and it relates to a 'loan' advanced by a banking company to a borrower. The learned counsel for the plaintiff on the other hand contends that the subject-matter of the present suit is outside the scope of the Ordinance XIX of 1979 as the reliefs claimed in the suit cannot be granted by a special Court created under the Ordinance of 1979. In order to appreciate the respective contentions of the learned counsel for the parties I will examine here in detail various provisions of Ordinance XIX of 1979. The expression "borrower" and "loan" respectively are defined in section 2(b) and (d) of the Ordinance XIX of 1979 as amended upto date as follows:-- "2. (b) "borrower" means a person who has obtained a loan from abanking company and includes a surety or an indemnifier; (c)
(d) "loan" means loan advances and credit as defined in the Banking Companies Ordinance, 1962 and includes--
(i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking company to a borrower;
(ii) a guarantee, indemnity, letter of credit or any other financial engagement which a banking company may give, issue or undertake on behalf of a borrower;
(iii) a Benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted;
(iv) any amount due from any borrower to a banking company under a decree passed by a civil Court or an award given by an arbitrator; and
(v) any loan due from any borrower to a banking company which is the subject-matter of any pending suit, appeal or revision before any Court;"
4. ' From reading of the definitions of "borrower" and "loan" reproduced above it is quite clear that a "Benami loan" is that in which the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted. Therefore, in a case relating to a "loan" if it is alleged by the person in whose name the loan is taken, that the real recipient or beneficiary of the loan is someone else the special Court will have the jurisdiction to decide this plea. In the present suit the plaintiff has impleaded as defendants a banking company (Defendant 1) and officer of the banking company (Defendant 2) and a limited company (Defendant 3) and a private person (Defendant 4). The allegation of the plaintiff against the defendant No.1 is that it obtained promissory note, letter of guarantee, letter of continuity, memorandum of deposit and title deed and power-of-attorney from the plaintiff in connection with a loan of which defendants 2 and 3 were the real beneficiaries and recipient. It is also alleged in the plaint that the amount of loan against which the documents executed by the plaintiff are being utilized by defendant 1 in fact relates to a transaction of loan which defendant 2 had obtained for his own benefit and for the benefit of defendant 3. On the basis of these allegations the plaintiff has claimed the following relief in the suit:- "(1) A declaration that the documents obtained in blank by the defendants 1 and 2 from the plaintiff (more specifically stated in para. 46 hereinabove) were and are in relation to the liability of the defendant No.3 and the plaintiff is not liable to any amount, if any, due against the said documents;
(2) A declaration that the Defendant No.3 and not the plaintiff, is liable to liquidate its liability payable and/or recoverable under and on the basis of the said documents.
(3) A declaration that the defendant No.2 being the ostensible and real beneficiary of the defendant No.3 is equally liable to the debts and dues outstanding against the defendant No.3 with reference to the documents in suit;
(4) A permanent injunction restraining the defendants 1, 2 and 3, their officers, agents, Directors, beneficiaries and any person/persons claiming through or under them from making use, utilizing and/or filling the documents encumbering or burdening the plaintiff's personal Account No.10048 or recovering any amount on the strength of the said documents;
(5) Costs of the suit;
(6) Any other relief/reliefs that this Hon'ble Court may deem fit and proper under circusmtances of the case against all and/or any of the defendants."
5. ' I may mention here that although defendant No.4 is also impleaded in the suit but neither any allegation is made against him concerning the loan nor any relief is claimed against him. Upon reading of the plaint as a whole there is no doubt that the controversy raised in the suit by the plaintiff relates to a loan which the defendant No.1 alleges to have advanced to the plaintiff while the plaintiff contends that it was for the benefit of defendants 2 and 3. Such a controversy in my opinion is to be dealt with and decided by a "Special Court" under the provisions of Ordinance, XIX of 1979. Mr. Zaidi, the learned counsel for the plaintiff contends that the relief of declaration claimed by the plaintiff is of general nature which can only be granted by a Civil Court and not by a 'Special Court' exercising limited jurisdiction. I will now examine relevant portion of the provisions of section 6 of the Ordinance XIX of 1979 to find out if the reliefs claimed in the suit could be granted by the special Court. It reads as under:-- "6(1) ..........................
(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908)
6. (b)
(c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it by or under this Ordinance.
7. 2....................................
8. 3...................................................
4. No Court other than a Special Court shall have or exercise, any jurisdiction with respect to any matter to which the juris diction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court; and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court.
9. 5 ..................................................
10. ' I may mention here that section 6 of the Ordinance has been amended by Ordinance 2 of 1983 but the relevant subsections namely subsections 6(1)(a) and (4) reproduced above are retained in their original form. A reading of section 6(1)(a) will show that a Special Court while exercising civil jurisdiction in respect of a claim filed before it by Banking Company against the borrower or by a borrower against Banking Company in respect of or arising out of a loan shall have all powers vested in a civil Court under the Code of Civil Procedure, 1908. Section 9 of the C.P.C. confers jurisdiction on civil Court to try all suits of civil nature except those cognizance whereof is either expressly or impliedly barred. Therefore, I fail to see why a Special Court while dealing with a case which is cognizable by it under the provision of Ordinance XIX of 1979, cannot grant a relief which a civil Court could grant under section 9 of the C.P.C. I am, therefore, of the view that the present suit is triable by a Special Court under Ordinance XIX of 1979. As the suit is cognizable by a Special Court the jurisdiction of all other Courts in respect thereof is barred under subsection (4) of section 6 of the Ordinance, XIX of 1979. Mr.I.H. Zaidi, the learned counsel for the plaintiff referred to the case M/s. National Motors Limited v. Muslim Commercial Bank Limited 1982 CLC 236 and Rehmat Bibi and another v. Hafiz Shamsuddin 1983 CLC 2536 in support of this contention that the Special Court under Ordinance XIX of 1979 has no jursidiction in respect of the present suit. The facts of the above-cited cases are quite distinguishable, and has no application in so far the facts of the present case are concerned. After having reached the conclusion that the jurisdiction of this Court is barred under section 6(4) of the Ordinance XIX of 1984, I asked the learned counsel for defendants 1 to 3, if I could reject the plaint in the suit under Order VII, rule 11, C.P.C. Both Mr. S.A.Sarwana and Mr.Khalid M.Ishaque, jointly contended that this Court is competent to reject the plaint under Order VII, rule 11, C.P.C. Mr.Khalid Ishaque specially contended that in spite of the fact that this Court has no jurisdiction to entertain the present suit it could reject the plaint under Order VII, rule 11, C.P.C. as rejection of the plaint does not amount to adjudication of the case on merits. In support of his contention the learned counsel referred to the following cases:- ' Phalomal Moti Ram v. Abdul Quddus Behari PLD 1971 Kar.
11. 250.
12. ' Seven Stars Goods Transport v. Administrator of Karachi Municipal Corporation PLD 1976 Kar. 21 and Kaniz Fatima v. Member (Revenue), Board of Revenue PLD 1973 Lah.
13. 495.
14. ' I have examined each one of the above cases referred by Mr.Khalid Ishaque and found that in none of these cases the point in issue has been dealt with. The question before me is whether a Court could reject a plaint under Order VII, rule 11, C.P.C. after it found that its jurisdiction to entertain the suit is barred under any law. In my humble view it is quite different to say that the suit is barred under some law than to contend that the jurisdiction of the Court to entertain the suit is barred under the law. In the first case the jurisdiction of the Court to entertain the proceedings may not be in question whereas in the latter case, even filing of the case before the Court is under challenge.
15. Upon careful reading of Order VII, rule 11, C.P.C. I am of the view that in order to vest the Court with the jurisdiction to reject a plaint under clause (d) of rule 11 of Order VII, C.P.C. the Court must possess initial jurisdiction to entertain the suit. If the jurisdiction of Court to entertain the proceeding is lacking inherently, then in my humble opinion, it could not reject the plaint and the only order which it could pass in these circumstances, is to return the plaint to plaintiff for presentation to the proper Court. I am quite clear in my mind that rejection of a plaint under Order VII, rule 11, C.P.C. involves adjudication in some manner with regard to the claim in suit which cannot be done by a Court which inherently lacked jurisdiction in the case. This conclusion of mine is also supported by the definition of "decree" as given in section 2(2) of the C.P.C which includes rejection of a plaint. I accordingly direct that the plaint be returned to the plaintiff for presentation before the Special Court constituted under Ordinance XIV of 1979.
16. ' In view of above order C.M.As. Nos.2992, 2993 and 3125 of 1983 have become infructuous. There will be no order as to costs.