1. ' The plaintiff have filed this suit for recovery of Rs,14,93,276.42.
2. ' The facts of the case in brief are that the defendant No,1 is partnership firm, while defendants Nos.
3. 2 to 5 are it partners. On 30-11-1979, the plaintiff on the request of defendants, advanced Rs,10 lac.
4. As loan/cash credit/overdraft to the defendants, who executed such promissory-note agreeing therein to pay interest at the rate of 4 per cent above bank interest rate with a minimum of 14 per cent per annum with quarterly rests. The defendants also created equitable mortgage over the property viz. Plot of land hearing No,B/26 in SITE by depositing title deed with the plaintiff and executed such confirmation letter dated 9-8-1980. The defendant failed to clear the dues and therefore the plaintiffs filed the suit.
5. ' The defendants have filed this application under Order XXXVII, Rule 3, C.P.C. For leave to defend the suit unconditionally.
6. ' I have heard Mr.Mubarak Hussain, learned Advocate for the defendants and Mr. Fasihuddin, learned Advocate for the plaintiff.
7. ' The main argument of the learned counsel for the defendants is that the amount in suit claimed by the plaintiff includes interest which is against the Injunction of Islam and Sharia and as such inadmissible in view of Article 2-A of the Constitution of Islamic Republic of Pakistan.
8. ' In support of his contention, the learned counsel has relied upon the case of Messrs Bank of Oman Limited v. Messrs East Trading Company Limited and others PLD 1987 Kar.
404. In this judgment the learned Single Judge of this Court has granted leave to the defendants to defend this suit on similar plea.
9. ' In the said case the learned Single Judge of this Court has observed:- "The upshot of the entire discussion is that the Courts in Pakistan are bound by the Constitution, and any law repugnant to the Constitution is void. The principles and provisions of the Objective Resolution, by virtue of Article 2-A, are now part of the Constitution and justiceable. Any provision of the Constitution or law found to be repugnant. To them, may be declared by superior Court, as void subject, however, to the limitations imposed by Articles 203-A, 203-B(c), 203-D, 203-G and 203-GG of the Constitution whereby special and specific jurisdiction has been conferred on the Federal Shariat Court to declare the law (as defined by Article 203-B(c) read with Article 203-G or any provisions thereof, as repugnant to the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet-(P.B.U.H.), and that the said law or any. Provision thereof has been so declared by it (Article 203-G)."
10. The question that requires consideration is whether this Court can declare and strike down any laws/or rules under which the tanks are authorised to charge interest as not in conformity with the .Injunctions of Islam and consequently repugnant to Article 2-A of Constitution of Islamic Republic of Pakistan?
11. ' Admittedly as yet no law has been promulgated in the country forbidding the charging of the interest.
12. ' It is rightly pointed in the aforesaid case:- "Another question may, perhaps, arise that if the Constituent Assembly or for that matter the Parliament has failed to provide for what has been pledged in the. Objective Resolution so that there is a gap or vacuum in the Constitution. Can that gap be filled in by the Court? I do not think so. It will not be the right course for the Courts to fill up that gap. The Courts are not to legislate. The Judges are to interpret the law as it exists. If there is a gap, it is the function and duty of the Legislature to fill it up. It would amount to a naked usurpation of the legislative function under the thin disguise of interpretation."
13. ' In this context reference may be made to Article 203-D of the Constitution which confers jurisdiction upon the Federal Shariat Court to examine and decide the question whether or not any law or provision is repugnant to the Injunction of Islam as laid down in the Holy Qur'an and Sunnah of Holy Prophet (peace be upon him). Under Article 203-G all the Courts including Supreme Court and High. Court are barred from entertaining any proceedings or exercising any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court. The abovequoted two Articles are contained in Chapter 3-A of the Constitution relating to the Federal Shariat Court. Article 203-A of the same chapter provides, that the provision of this chapter shall have effect notwithstanding anything contained in the Constitution. Legal position is clear that this Court or other superior. Courts cannot strike down any Article of Chapter 3-A of the Constitution to be void as repugnant to Article 2-A of the Constitution. This Court is therefore barred from deciding the question as to whether any law is repugnant to Injunction of Islam. This Court cannot declare any provision of the Constitution to be ultra wires. Reliance is placed upon the case of Fauji Foundation reported in PLD 1983 SC 457 wherein it is held that the judiciary being itself creation of Constitution cannot declare any provision of Constitution as void.
14. ' The learned counsel for the plaintiff upon the case of Muhammad Bochal Memon v. Govt. Of Sind (PLD 1987 Kar. 296). The Full Bench of this Court considered the question whether Article 270-A could be invalidated, in view of Article 2-A of the Constitution. It was observed as under:- "Article 2-A of the basis of which also validity of Article 270-A is sought to be question was inserted by the President's Order No,14 of 1985 promulgated on 2-3-1985 by the President of Pakistan. I do not find any valid reason nor has any been advanced by any counsel to test the validity of an amendment made in the Constitution by the Parliament by Constitution (Eight Amendment) Act, 1985. On the touchstone of a provision which was initially not an enforceable part of the Constitution and which was made enforceable by the President's Order No,14 of 1985. In my opinion both the amendments have the same force and the validity of one cannot be tested on the touchstone of the other."
15. ' With due respect to the views of my learned brother expressed in case of Bank of Oman, in my humble opinion this Court cannot go into the question as to whether the law or rules under which banks are authorised to charge interest are repugnant to the injunction of Islam. As such this plea of the learned counsel for the defendants is not sustainable.
16. ' In their application for leave to defend the suit defendants have not denied the signatures on the promissory note or Letter of Deposit of Title Deeds or other documents, but it is contended, that they were blank papers with, their signatures and the blanks were filled in by the plaintiffs afterward. They also contend that the interest shown in the promissory note is exorbitant and was not agreed pon between the, parties. However, the receipt of amount of the consideration is not specifically denied.
17. ' The defendants are experienced and educated persons and they are not expected to sign blank- papers. Even if they have signed the pronote and other documents with some blanks, the fact that they handed over this signed promissory note and other documents to the plaintiffs shows that they did so with full knowledge and intention that the plaintiff would fill the blanks. Neither in the affidavit nor during the course of arguments it is stated, that if figures shown in pronote were wrong then what were the correct figures, which were to be filled in these blanks. Similarly the interest shown in the promissory note is the usual interest charged by the bank. There is nothing on the record to suggest, as to what other rate of interest if any was agreed upon between the parties.
18. As a matter of fact during the course of arguments the learned counsel for the defendants had mainly placed his reliance upon the case of Bank of Oman which has already been discussed above. No other triable issue has been raised by the defendants. As such their application under Order XXXVII Rule 3, C.P.C. Is dismissed and the suit of the plaintiff is decreed with costs and interest at 4 per cent above bank rate with minimum 14 per cent per annum with quarterly rests. They are also awarded preliminary decree under Order XXXIV, Rule 4, C.P.C. For the sale of the mortgaged property.