Allied Bank of Pakistan Limited through Mr. Akhtar Ali Khan, Manager Charsada Branch plaintiff/petitioner herein, sued Muhammad Nazir respondent herein, for the recovery of Rs.27,100 being the outstanding amount of loan advanced to him by the plaintiff Bank along with interest accrued during the interregnum. The defendant/respondent contested the suit and in his written statement raised several pleas both technical and factual. Necessary issues were framed by the learned Civil Judge who was seized of the case and the parties submitted their lists of witnesses and the documents relied on by them, whereafter plaintiff-Bank was directed to produce evidence in support of their allegations contained in the plaint. However, on 16-12-1982 nobody appeared on behalf of the plaintiff-bank/appellant, though defendant No.l was in attendance, and consequently the suit was dismissed for non-prosecution. An application for setting aside the dismissal of the suit and revival of the proceedings was filed by the plaintiff-Bank on 13-1-1983 but the reasons advanced therein were not accepted by the learned Civil Judge who rejected the same vide order dated 4-6-1983. Feeling aggrieved with the tame, the plaintiff-bank preferred appeal before the learned Additional District Judge, Charsadda on 23-6-1983. The learned appellate Court, influenced by the amendment in the Banking Companies (Recovery of Loans) Ordinance, 1979 through Ordinance II of 1983 doubted his jurisdiction to hear the appeal and consequently, vide iris order dated 19-9-1985, transferred the same to the Banking Judge for necessary action. The Special Judge Banking, however, did not subscribe to the view expressed by the learned Additional District Judge, Charsadda and returned the file back to him with an observation that his jurisdiction only extends to the trial of original suits instituted by the Banking Companies against their borrowers and vice versa and that he has no jurisdiction to hear appeals against the orders already passed b) the Civil Judge. Thereafter the learned Additional District Judge, Charsadda, on the receipt of the file back from the Special Judge, adjourned the appeal from time to time on account of one reason or the other, as is manifest from the order--sheets of the appellate file and ultimately on 22-3-1986 passed the following order:- "Counsel for the parties present. Mr. Gohar Rehman Khan Advocate counsel for the appellant-Bank states, that he has no instructions from his client to proceed with the appeal. Costs of Rc_100 levied upon the appellant-Bank on 19-2-1986 have not been also paid. Appeal dismissed under Order 41, Rule 17, C.P.C. For want of prosecution-"
2. An application for restoration of the appeal was filed by the plaintiff --Bank on 1-4-1986 which was also dismissed on 14-7-1986 on account of the absence of the applicant and the non- payment of the costs, he was required to pad in view of the order of the Court recorded in the earlier order-sheet. Hence the instant First Appeal against the order under Order 43 of the Civil Procedure Code read with sections 115 and 151 C.P.C. Praying for the setting aside of the orders dated 14-7-1986 and 22-3-1986 referred to above.
3.1 have heard learned counsel for the parties and have perused the record of the case with their assistance.
4. At the outset it is proper to dispose of the preliminary objection raised by the learned counsel for the defendant/respondent that the appeal is not competent. As discussed above, the learned Civil Judge rejected the application under Order 9, Rule 9, C.P.C. For setting aside the dismissal vide his order dated 4-6-1983, and the appeal filed against it was also dismissed for non-prosecution, under Order 41 Rule 17, C.P.C. And the remedy provided by law to the negligent appellant was available under Order 41, Rule 19, C.P.C. But for reasons best known to him, the appellant did not resort to that remedy and straightaway approached this Court through the filing of the instant FA.O. Under Order 43 read with the provisions of sections 115 and 151. C.P.C. The learned counsel for the appellant could not convince me about. The maintainability of the instant appeal under Order 43 C.P.C. And consequently the appeal in hand is held as not legally entertainable. However, as important legal and jurisdictional points were agitated by either side, I treated it as a Revision Petition under section 115 C.P.C. And allowed the parties to address the Court regarding their respective view points.
5. It is not disputed that at the time of the institution of the suit, the subject-matter of the suit being less than Rs. One lac, the Civil Court had the jurisdiction to decide the controversy between the parties. It is also admitted that at the time of the dismissal of the original suit in default on 16-12- 1982, as well as the submission of the application for its restoration on 13-1-1983, the Civil Court had the jurisdiction in the matter. However, it was on 30-1-1983 when the Ordinance-II of 1983, called the Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 was promulgated whereby all the suits, irrespective of its subject value, filed by Banking Companies were made exclusively triable by Special Courts constituted for the purpose. The learned counsel for the plaintiff/petitioner urged that at the time of the dismissal of the restoration application on 4-6-1983 the amending Ordinance ibid had already come into force and the Civil Court had ceased to have jurisdiction in any proceedings arising out of any suit filed by the Banking Companies in view of section 6, subsection (4) of the Banking Companies (Recovery of Loans) Ordinance, 1979 as amended. He cited the judgment of this Court in case., Mrs. Yasmeen Nighat and another v.
National Bank of Pakistan reported as PLD 1984 Pesh. 188, maintained in appeal by the august Supreme Court vide their judgment reported as PLD 1988 SC 391. He also placed reliance on the judgment of the Lahore High Court in case Habib Bank Ltd. v. Zafar Ali reported as PLD 1986 Lahore
42. The learned counsel for the respondent, on the other hand, emphasised that the dismissal of the suit was ordered by the Civil Court and that only the very Court is empowered to set aside the dismissal aside, if it finds that there was sufficient cause for the nonappearance of the plaintiff/petitioner.
6. 1 have carefully considered the arguments advanced by learned counsel for either side. For the proper appreciation of the controversy involved herein it is advisable to reproduce subsection (4) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 hereunder:- "No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction 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."
7. The learned counsel for the petitioner laid great emphasis on the words "all proceedings" underlined above and referring to the meaning of the proceedings as given in the law dictionary, submitted that the proceedings before the lower forums for restoration of the suit of the petitioner dismissed in default on 16-12-1982, fell within the ambit of subsection (4) reproduced above and that the said proceedings stood transferred to the Special Court on the promulgation of the amending Ordinance II of 1983. 1 have minutely gone through the said provisions of law as well as the authorities cited by the learned counsel for the petitioner but am unable to subscribe to his view. The Peshawar High Court authority confirmed in appeal by the Supreme Court has no application to the instant dispute inasmuch as in the cited cases, the trial of the suits had not yet been concluded and were still pending for adjudication before the civil Court when the amending Ordinance came into force. The judgment of the Lahore High Court (Multan Bench) is also not helpful because the ratio in that case was whether the Special Court, without setting aside the decree already passed by the civil Court ex parte could grant permission to the defendant-loanee to defend the suit under Order 37 rule 2(2), C.P.C. And His Lordship disagreeing with the Special Court ordered re-hearing of the matter with an observation that the Special Court can only grant the permission sought for, after it is pursuaded to set aside the decree already passed. The question whether the setting aside of the decree was within the jurisdiction of the civil Court or that of the Special Court was neither raised before nor heard by the Special Court nor was it decided upon in the said judgment. In a recent illuminating judgment of the Supreme Court in the famous Sardar Ali case reported as PLD 1988 Supreme Court 287, after thorough discussion of the Anglo- Saxon law, the Islamic common law read with constitutional provisions in the light of the Objectives Resolutions having been made part of the Constitution, it was held: "Where the right of the parties had been judicially determined with reference to the terms of law in force at the time of adjudication, the finality of such a judgment would not be affected merely because the law on the basis of which that decision was rendered had subsequently been altered unless a provision was expressly made in the changed or modified law destroying the finality of that judgment."
"It has been found that these provisions not only permitted but also required the decisions of the pre-emption cases on the basis of the old law by the relevant forums before the date of the effectiveness of the decision of this Court--31-7-1986. And subsequently also the pre-emption decrees passed before that date would have the effect unless altered in accordance with the same law. There is no doubt at all regarding the nature of the decrees passed before 31-7-1986 when the judgment became effective and laws in question became ineffective. We have also held that the decrees passed in favour of the plaintiffs embody such property rights, which could be inherited and defended accordingly.
Even under the Islamic concepts of justice and fairness, as enshrined in various Islamic injunctions, referred in the case of civil servants; Pakistan v. Public At Large PLD 1987 SC 304, such decree- holders, become clothed with same rights on the decrees having been passed. They cannot be taken away except by the modification of a decree. In the proceedings for modification, the decree-holder has a right to defend it like any other property right. It would be unfair to burden him with the additional requirements of a change in the substantive law; unless the governing law itself so required. In this matter one governing law---Chapter 3-A of the Constitution did not require it.
Therefore, the mere ineffectiveness of the old law will not affect this right. The verses of the Holy Ouran relied upon by the learned counsel regarding the change of law are distinguishable. Most of them relate to the matrimonial relationship. The position is different when the property rights are involved. Be that as it may even regarding one type of the former law, when it was changed, the previous operation thereof and the rights thereunder were not affected thereby."
In yet another judgment of the Supreme Court in case Adrian Afzal v. Capt. Sher Afzal reported as PLD 1969 SC 187, it was observed:- "The general principle with regard to the interpretation of statutes as laid down in the well- known case of the Colonial Sugar Refining Company Limited v. Irving (1) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect."
8. The dismissal of the suit of the plaintiff/petitioner on 16-12-1982 tant amounts to a decree in favour of the defendant/respondent absolving him from the payment of the amounts alleged to be outstanding against him. He thereby acquired valuable vested rights which he had a right to defend in any subsequent proceedings and any change in law, in view of the dictum of the p, Supreme Court, cannot deprive him of the same. There is no specific provision in the amended Ordinance-II of 1983 conferring jurisdiction upon the Special Court to adjudicate upon any proceedings initiated after the passing of the decree by the civil Court, before the amendment in the existing law, except the proceedings relating to the execution of decrees passed before or after the amending Ordinance.
9.Order IX, Rule 8, C.P.C. Provides that when the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court c1~a11 make an order that the suit be dismissed. Order 9, rule 9 of the Civil Procedure Code bars the filing of the fresh suit in respect of the same cause of action. However, the plaintiff can file an application for setting aside the dismissal aside and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court may make an order for setting aside the dismissal upon such terms as to costs and otherwise as it thinks fit and shall appoint a day for proceeding with the suit. Needless to mention that the dismissal of the suit amounts to a decree in favour of the defendant against the plaintiff putting an end to the dispute between the parties unless the same is set aside under Order 9 rule 9, C.P.C. Consequently on the date of promulgation of the amending Ordinance II of 1983 there were no proceedings pending before the civil Curt for the recovery of loan. The mere fact that an application for setting aside the order of dismissal of the suit was pending before the Civil Court at the relevant time could not, per se, result in the revival of the suit for the recovery of the loan from the loanee. The Court mentioned in Order 9 rule 9, C.P.C. Obviously means the Court which passed the decree and can, by no stretch of imagination, imply that if the jurisdiction of the said Court is ousted to adjudicate upon similar matter, ipso facto, the jurisdiction of the said Court to decide the application under Order 9 rule 9, C.P.C. Is also taken away. Here I may refer to ion 8 of the Ordinance ibid whereby it is ordained that the Special Court shall, after the case has been heard, pronounce judgment as early is practicable and after such judgment, a decree shall follow forthwith. Section 13 of the Ordinance makes provisions of pending cases and appeals and it is nowhere provided that if any suit has been dismissed for default and application for setting aside the same is pending or similar other applications like application for setting aside the ex parte decrees, application for review, application under section 12(2) C.P.C. Etc. Are pending disposal before the civil Court, they shall also stand transferred to the Special Court. According to the relevant provisions regarding the aforementioned matters, the parties against whom the orders have been passed have to satisfy the Court regarding the causes preventing them from appearance .At the time of the hearing.
These matters were not specifically mentioned in the Banking Ordinance and left for disposal by the Court concerned. Of course the provisions of the Ordinance would have been attracted if the application under Order 9 rule .9, had been accepted and dismissal of the suit set aside, in which case the original suit, having revived would have been transferred to the Special Court for disposal according to law. I am, therefore, of the considered opinion that the learned Civil Judge had the jurisdiction to dispose of the application for setting aside the order of dismissal of the suit and do not find any illegality committed by him on this score.
10. As regards the merits of the case, the suit was dismissed on 16-12-1982 and the application for its restoration was filed on 13-1-1983. The learned Court, after hearing the parties, was not convinced about the grounds mentioned in the application for restoration and consequently vide its order dated 4-6-1983 dismissed the same. The appeal filed against this order by the plaintiff/petitioner was also dismissed under Order 41 rule 17, C.P.C. For non-prosecution. As stated earlier it was within the discretion of the learned Civil Judge to set aside the dismissal and order restoration of the suit or not. There is nothing on the record to show that the discretion exercised by him was in any way illegal or materially irregular. The plaintiff/petitioner for no convincing reasons abandoned the prosecuting of the appeal and the learned appellate Court, under the circumstances, had no option but to dismiss the same under Order 41 rule 17, C.P.C. The plaintiff/petitioner could move the same Court for re-admission of the appeal under Order 41 rule 19 C.P.C. But, for reasons best known to them, they did not resort to the said provisions of law and instead approached this Court in appeal/revision. The order of the learned Appellate Court is, therefore, unassailable, particularly when no patent illegality, material irregularity or jurisdictional error could be pointed out by the learned counsel for tbt plaintiff/petitioner. .
11. For the reasons stated above, the instant petition is dismissed, with no order as to costs.