' AJMAL MIAN, J.-This Constitutional petition is directed against the order 12-9-1984, passed by a learned Single Judge of this Court in Suit No, 624 of 1983, granting leave to the petitioners under Order XXXVII, rule 3, C. P. C. Read with section 151 on furnishing security to the extent of Rs, 28,00,000 (rupees twenty-eight lacs).
2. The brief facts leading to the filing of the above petition are that the respondent banks filed aforesaid suit for recovery of Rs, 49,26,947.62 against the petitioners at the original civil jurisdiction under the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter referred to as the Ordinance), in respect of the loan which was obtained by petitioner No, 1 and of which petitioners Nos. 2 to 4 and one late Mir Akram Kazmi stood guarantors under the letter of guarantees.
Petitioner No, 1 filed a separate application for leave to defend the suit, petitioners Nos. 2 to 4 filed a joint application for leave to defend the above suit and petitioner No, 5 who was the legal heir being the daughter of late Mr. Ikram Kazmi also filed a separate application for leave to defend (C.
M. A. Nos. 567/84, 568/84 and 833/1984). The above applications were opposed by the respondent.
However, the learned Single Judge after hearing the learned counsel for the parties by his order dated 12-9-1984 (though it was announced on 4-9-1984), granted conditional leave to petitioner No, 1 on furnishing security of Rs, 28 lacs to the satisfaction of the Nazir of this Court within a period of eight weeks. Petitioners Nos. 2 to 5 were also granted conditional leave namely on furnishing security in the sum of Rs, 28 lacs to the satisfaction of the Nazir of this Court within a period of eight weeks. The petitioners being aggrieved by the above order have filed the present petition. The office of this Court has raised an objection to the maintainability of the above writ petition.
3. Mr. Sltakil Lari learned counsel for the petitioners in support of the above petition has urged as follows :-
(i) That since the learned Single Judge was acting as a persona designata under the Ordinance, this Court is competent to issue a writ under Article 9 of the 'P. C. O.'.
(ii) That the learned Single Judge after having held that the defence raised by the petitioners was triable, was obliged to grant unconditional leave in view of the various pronouncements of the superior Courts.
4. Adverting to the question of the maintainability of the above petition, it may be appropriate to refer to clause ( f) of section 2 of the Ordinance as substituted by the Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 (Ordinance H of 1983), which reads as follows "(f) "Special Courts" means-
(1) in respect of a case in which the outstanding amount of the loan does not exceed one million rupees, or the trial of offences punishable under this Ordnance, a person who is or has been a District Judge or an Additional District Judge and is appointed by the Federal Government, by notification in the official Gazette ; to be a special Court to exercise jurisdiction within such territorial limits as may be specified in the notification, and, in the absence of such appointment, the District Court ; and
(ii) in respect of any other case, the High Court in the exercise of original civil jurisdiction."
It may be noticed that under the above-quoted definition of Special Court given in clause ( f ) of section 2 of the Ordinance up to the pecuniary jurisdiction of one million rupee, a person who is or has been a District Judge or an Additional District Judge can be appointed by the Federal Government by notification in the official Gazette to be a Special Court to exercise jurisdiction within such territorial limits as may be specified in the notification and in the absence of such appointment the District Court is to act under the Ordinance. It may further be noticed that in respect of matters other than provided for under sub-clause (i) of clause ( f), the High Court in the exercise of the original civil jurisdiction is to entertain the cases under the Ordinance. In other words. If the amount of the claim is more than one million rupee the suit under the Ordinance is to be filed in the High Court at the original side.
' It may also be pertinent to mention that under subsection (1) of section 12 of the Ordinance, it has been provided that any person aggrieved by any order, judgment 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 was passed. It may be pointed out that proviso to the above subsection (1) provides that no appeal shall lie from an interlocutory order which does not dispose of the entire case before Special Court. It may further be stated that subsection (4) lays down that an appeal under this subsection shall not be heard by a Bench of Judges not less than two Judges, whereas subsection (5) provides that no appeal shall be admitted for hearing unless the appellant deposit in cash with the High Court the amount equivalent to the judgment or at the discretion of the High Court furnish a security equal in value of such amount. Since in the instant case the suit is still pending and the impugned order has not disposed of the entire case, no appeal is competent under the Ordinance against the impugned order.
5. It has been vehemently urged by Mr. Shakil Lari that under clause (f) of the Ordinance a Single Judge of this Court while exercising jurisdiction under the Ordinance acts as a persona designata like a person who is or has been a District Judge or an Additional District Judge notified under sub- clause (1) of clause ( f ) of section 2 of the Ordinance. In furtherance of his above submission he has referred to the case of Asif Jah Siddiqui v. Government of Sind and others (1), in which the honourable Supreme Court of Pakistan while considering the question,
(I) PLD 1983 SC 46 ' whether the judgment given by a Division Bench in exercise of writ jurisdiction shall constitute res judicata for the purpose of fresh suit quoted a passage from the judgment of the Supreme Court in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others. Mr. Shakil Lari has particularly relied upon the above passage. It may be advantageous to reproduce hereinbelow the above passage which reads as follows :- "The learned Judges of the Full Bench next proceeded to consider the contention raised before them that as the Election Commission was constituted of persons having the status of Superior Judges, and as in particular the Member whose order was placed before the Full Bench for judicial review, was himself a Judge of the High Court, no writ could be issued to him. The learned Judges agreed that no writ could issue to a Superior Court, and this is clearly in accordance with the direction derivable from the definitive provision in Article 98 that no order under that Article shall issue to the Supreme Court or a High Court. But they found that the Member was persona designata in the case, and did not act as a, Judge of the High Court and relying on two cases from the English jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion that the member was "subject to the control, of the High Court under Article 98 and is amenable to an order passed by it under that Article". In the two decisions from the English Courts, which have been cited, there was an express provision to the effect that a decision by the Tribunal will not be deemed to be a decision by the High Court, but for the interpretation of Article 98, in respect of this question that consideration is not of appreciable weight. The learned Judges were in all probability right in considering the Member to be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring hereto a small observation in one of the judgments cited by the Full Bench with reference to the idea of a Superior Court issuing a writ to itself, viz. :- "The process involves the rather ludicrous position that Judges are called upon themselves"
' Why their orders should not be quashed. In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of any two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of "ludicrousness" might arise if a writ were sought from a Single Judge of the High Court to avoid actions by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of "ludicrousness" there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision."
' In the above-quoted passage the honourable Supreme Court upheld the view of the Full Bench of the Lahore High Court that a Judge acting as a Member of the Election Commission act as a persona designata and amenable to constitutional jurisdiction under Article 98 of the late Constitution of 1962. The point, therefore, for consideration in the present case is as to whether a learned Single Judge while exercising power under the Ordinance acts as a persona designata or he acts as the High Court. A plain reading of the above-quoted clause ( f ) of section 2 of the Ordinance indicates that the High Court is to exercise jurisdiction under the Ordinance in the exercise of its original civil jurisdiction and not as a Tribunal. It may be observed that every Judge of a High Court exercises the jurisdiction of the High Court and an intra-Court appeal from an order or a judgment of a Single Judge before a Bench of two or more Judges of the High Court is not an appeal from an inferior Court to a Superior Court but it is a review of the judgment by the same Court by a larger Bench. In this regard reference may be made to the following cases : ' Sheikh Muzaffardin v. Mst. Allahwasai and others PLD 1953 Lah. 284; Shaikh Mahboob Alam v.
Shaikh Mumtaz Ahmad PLD 1960 Lab. 601 ; Mrs. Keays Byrne v. Obaidullah Khan PLD 1961 Lah. 256 and Messrs Moosa Oomer & Co. Ltd. v. Messrs Haji i?. Dossa & Sons and another PLD 1971 Kar.
899.
6. It may be mentioned that the present petition is under Article 9 of the P. C. 0, and, therefore, it may be pertinent to refer to the relevant clauses of the above Article, namely, clause 1 and clause 9, which read as follows :- ' Article 9. Jurisdiction of High Court.-(1) Subject to this order, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do ; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connections with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect ; or
(b) on the application of any person, make an order-
(i) that a person in custody within the territorial jurisdiction of the Court be set at liberty after satisfying itself that he is being held in custody without lawful authority ; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
9. In this Article, unless the context otherwise requires, "person" includes any body politic or corporate any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan ; and "prescribed law officer" means-
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General ; and
(b) in any other case, the Advocate-General for the Province in which the application is made."
' It may be noticed that under clause (1) a High Court has been empowered on the application of any aggrieved person if it is satisfied that, no other adequate remedy is provided by law to issue a direction to a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation; a Province or a local authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do or declare that any act done or proceeding taken within the territorial jurisdiction of the Court by a person reforming functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and of no legal effect. Other portion of this clause is not pertinent for the purposes of the point in issue and, therefore, need not be preferred to. It may further be noticed that clause (9) provides that "person" referred to in above Article 9 includes anybody politic or corporate or any authority of or under the control of the Federal Government or of a rovincial Government and any court or Tribunal other than the Supreme Court, a High Court or a Tribunal established under a law relating to Armed Forces of Pakistan. It is, therefore, evident that for the purposes of Article 9 inter alia a High Court has been excluded from the purview of person referred to inter alia in clause (1) of the above Article 9 of the P. C.
0. In this view of the matter, no writ can be issued of the nature covered by Article 9 of the P. C. O. To a Single Judge of this Court acting as the High Court in exercise of original jurisdiction under the Ordinance. The petition is, therefore, not competent.
' It will not be out of place to mention that even otherwise a writ petition would not be competent if the effect of it would be to negate proviso to subsection (1) of section 12 of the Ordinance which provides that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. The impugned order of the learned Judge cannot be said to be without jurisdiction or in excess of jurisdiction but the petitioner has invoked the constitutional jurisdiction for the reason that no right of appeal is provided. The factum that no right of appeal is provided under the relevant law or that it expressly bars a right of appeal simplicity will not itself justify invoking constitutional jurisdiction. Prerequisite for pressing into service constitutional jurisdiction is to show that the impugned order without jurisdiction or in excess of jurisdiction or suffers from an infirmity is of the nature which would involve jurisdictional defect.
' As regards the above second contention of Mr. Shakil Lari, it may be stated that he has referred to the following cases :
(i) Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 in which the Honourable Supreme Court of Pakistan while dealing with the question of granting leave in a suit under Order XXXVII observed as follows : "In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up be vague, unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put to terms either to furnish security or to deposit the amount claimed in Court.
' The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dissimilar to the principles which govern the exercise of the summary power of giving liberty to sign final judgment in a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by the Court of Appeal in the case of Kodak v. Alpha Film Corporation was that at the stage when leave to defend is sought "the judge is not to try the action ; he is to see that there is a bona fide allegation of a triable issue, which is not illusory ; he need not be satisfied that the defence will succeed ; it is enough that such a plausible defence is Nerified by affidavit."
(ii) Milkhiram (India) Private Ltd. And others v. Chamanlal Bros. AIR 1965 SC 1698 in which the Indian Supreme Court held that when a Court upon consideration of material placed before it comes to the conclusion that the defence is a sham one or is fantastic or highly improbable the order putting the defendant to terms before granting him leave would be justified but where a Single Judge finds that defence raises a triable issue then leave should ordinarily be granted unconditionally.
(iii) Azmat Wall v. Hasan Al-Adawi and 2 others 1983 CLC 546. In the above case a learned Single Judge of this Court after reviewing case-law on the question or grant of leave under Order XXXVII formulated general principles deducible from the cases referred to and discussed in the judgment and observed as follows : `If leave is to be granted to the defendant to defend the suit ; it can be unconditional leave or conditional, depending on the strength of the defense put up by the defendant. If a plausible defence, whether on facts or in law,, is made out, unconditional leave is, as a general principle, granted;".
(iv) Abdul Karim Jaffarani v. United Bank Ltd. And 2 others 1984 SCMR 568, in which the Hon'ble Supreme Court of Pakistan inter alia observed that in a suit based upon the negotiable instrument the question whether leave to defend is to be granted conditional or unconditional is a matter of discretion of the Court and to be exercised on facts and circumstances of each case and that it would be improper to lay down a rule of thumb for the exercise of power in matters of discretion vesting in a Court, when even the statute has left it unfettered. It was further held that it will be improper exercise of discretion to impose conditions simply, because at the 'leave granting stage the defendant is unable to adduce his evidence on the pleas raised in his defence.
8. There can be no cavil to the preposition that the question of grant of leave conditional or unconditional is a matter of discretion of the Court which is called upon to decide the question of leave and that this discretion is to be exercised judiciously and not arbitrarily or capriciously or in a manner which may defeat the ends of justice. In the present case the total amount of claim in suit was Rs, 49,26,947.62 but the learned Single Judge has instead of asking security for the said amount has ordered security only to the extent of Rs, 28 lacs which was the amount of loan received. The petitioners had raised the question of limitation by aver-ring that certain acknowledgement letters were forged. If the above plea would not have been raised the petitioners might not have been entitled to the leave. The learned Single Judge seems to have exercised discretion after applying his mind fully to the facts of the case. In any case even if it is to be held that the discretion has not been exercised properly, the same cannot be the subject-matter of a writ petition as observed hereinabove that it cannot be denied that the learned Single Judge had the jurisdiction in the matter. The mere fact that he has taken erroneous view would not attract the constitutional jurisdiction of this Court. In this regard reference may be made to the following cases :-
(i) Muhammad Husain Munir and others v. Sikandar and others PLD 1974 SC 139 in which the Hon'ble Supreme Court was pleased to hold that where there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction to attract the constitutional jurisdiction under Article 98 of the Constitution of Pakistan 1962, or Article 199 of the Constitution of Pakistan, 1973.
(ii) Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246. In the above case the Hon'ble Supreme .Court while considering the question of grant of leave against the judgment of the Lahore High Court passed in writ petition in which the order passed under the late West Pakistan Rent Restriction Ordinance, 1959, was impugned observed that the Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the mere fact that another conclusion was possible on evidence adduced does not make it a case for interference in exercise of constitutional jurisdiction.
(iii) Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sind and another PLD 1984 Kar.
462. In the above case a Division Bench of this Court while considering the propriety of an order passed by the Tribunal under the Ordinance pointed out the distinction between an act wholly without jurisdiction and an act done in improper exercise of that jurisdiction. It was held that merely a wrong decision would not render the decision without jurisdiction and the reliance was placed inter alia on the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 and the above case of Muhammad Husain Munir and others v. Sikandar and others PLD 1974 SC 139.
9. We are, therefore, of the view that even if we were to hold that a writ is competent against an order of a learned Single Judge of this Court passed in exercise of the power under the Ordinance, the writ jurisdiction could not have been pressed into service by the petitioners only on the ground that the learned Single Judge has taken an erroneous view in the matter or for the reason that an appeal is expressly barred against an interlocutory order under the proviso to subsection (1) of the Ordinance.
' For the foregoing reasons the petition is dismissed in limine.