The facts giving rise to this revision are that the petitioner, United Bank Limited, through its Manager, Rahim Bazar's Branch, D.
1. Khan filed a suit against Sheikh Khuda Bakhsh, since dead and represented by Mst. Jinda Bibi and eight others, respondents herein, for the recovery of a sum of Rs.43,655.20 by sale of mortgaged property fully described in the title of the plaint. The suit was dismissed in default on 29-5-1985. The petitioner filed an application for restoration of the suit which was contested by the respondents. This application was also dismissed on 14-5-1987 on merits as also on limitation. Feeling aggrieved of this order, the petitioner filed an appeal before the learned District Judge, D.I. Khan, which was also dismissed on 20-10-1987._ Hence this petition.
2.The main point urged by Sultan Sheharyar Khan, the learned counsel for the petitioner, is that both the learned lower Courts had no jurisdiction to decide the case in hand and, as such, their orders are a nullity in the eyes of law. Elaborating his contention, the learned counsel submitted that on 27th of March. 1979, Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979) was promulgated, section 5 whereof provided for establishment of Special Courts by a notification in the official Gazette by the Federal Government for the trial of such cases. According to section 6,
(2) (a) of the Ordinance, such a special Court had the jurisdiction to try the cases of hank loans for the recovery of Rs. One lac, and according to section (4) thereof, the jurisdiction of Civil Courts in such cases was barred. According to the Statute, therefore, all suits for recovery of bank loans for a sum of Rs. One lac or less than that amount could be entertained by Civil Courts of specific pecuniary jurisdiction and the suits for the recovery of Rs. 43,655.20 could be entertained and decided by the lower Courts. The learned counsel, therefore, maintained that the Ordinance was amended by means of Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983, which was promulgated on the 30th of January, 1983. According to the said Ordinance, sections 2
(a) and 5 were omitted and section 2 (1) giving the meaning of Special Court was substituted by a fresh provision which provided that the Special Courts means in respect of a case in which the outstanding amount of loan does not exceed one million rupees, or the trial of officials punishable under this Ordinance, 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 he 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. The learned counsel thus submitted that after the omission of clause (a) of section 6 (2) of Ordinance 11 of 1983, no suit for the recovery of outstanding amount claimed by a Banking Company from a borrower whether exceeding one lac rupees or not was entertainable by a Civil Court and the appeals filed by the petitioner there against were coram non judice. He, in support of his contention, placed reliance on (1) Yasmeen Neghat v. National Bank of Pakistan (PLD 1988 SC 391) and (2) Mrs. Yasmeya Naghat v. National Bank of Pakistan (PLD 198.1 Peshawar 188).
3. As against this, Syed Saeed Hassan Sherazi, the learned counsel for the respondents, placed reliance on National Bank of Pakistan v. Taj Muhammad PLD 1984 Lahore 417 which held that the amendment by virtue of Ordinance II of 1983 in forum for recovery of bank loans of rupees one lac or less than that would be considered prospective and would not affect pending cases.
4. I have gone through the record and the three precedents cited at the Bar by the learned counsel for the parties. In so far as prospectivity or otherwise of the Banking Companies (Recovery of Loans) (Amendment) Ordinance 1983 is concerned, the view expressed by the learned Division Bench of this Court in Yasmeen Neghat's case has been approved by their Lordships of the Supreme Court in Yasmeen Naghat v. National Bank of Pakistan cited above. The interpretation of section 6 (2), as amended by virtue of Ordinance II of 1983, made by the learned Division Bench of the Lahore High Court in National Bank of Pakistan v. Taj Muhammad's case was not approved by the Supreme Court in the case referred to above.
5. The Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 came into force on the 30th of January, 1983. As stated earlier, by omission of clause (a) of subsection (2) of section 6 of the Ordinance, the condition that a Special Court constituted under section 6 of the Ordinance ibid shall have no jurisdiction in a case in which the outstanding amount of loan does not exceed one lac rupees evaporated and any outstanding amount of loan could be claimed by the Banking Company by way of a suit in a Special Court. The suit, which is subject-matter of this Civil revision, was filed in the Court of Senior Civil Judge, D.I. Khan, on 4-9-1983. It is thus clear that by virtue of Ordinance 11 of 1983 amending Ordinance XIX of 1979 which had come into force on the 30th of January, 1983, the Special Courts constituted under this Ordinance had the exclusive jurisdiction to entertain: this suit for the recovery of Rs.43,655.20. After examining the provisions of Ordinance XIX of 1979 in juxtaposition with Ordinance II of 1983, the august Supreme Court has laid down the proposition, that the Legislature, by enacting section 6 of Ordinance XIX of 1979, intended to oust the jurisdiction of all other Courts in the matters of Banking Loans and to confer exclusive jurisdiction on Special Courts in respect of the matters which were made triable by the said Court under the terms of the said Ordinance. Under section 6 (2) of Ordinance XIX of 1979, the jurisdiction of the Special court was expressly excluded in relation to cases involving one lac rupees or less. In Ordinance 11 of 1983, the definition of Special Court having been superseded and subsection (2) (a) of section 6 of the Ordinance XIX of 1979 having been omitted, the Special Court, under section 5 (1) of the Ordinance ibid, shall be vested with the jurisdiction to try even those cases which were specifically A excluded from its jurisdiction under section 6 (2) of the parent Ordinance. In consequence, the Special Court was vested with the exclusive jurisdiction in such matters and the jurisdiction of all other Courts had been ousted in respect of such cases. It is, therefore, clear that the Civil Courts had no jurisdiction even at the time of filing of this suit on 4-9-1983 to entertain it.
6. The result is that this civil revision is accepted, the judgments and decrees of the two Courts below are set aside, and the plaint is directed to be returned under rule 10 of Order VII, C. P. C. To the petitioner to be presented before the competent Court if they so desire. This order shall be subject to all just exceptions. There shall be, however, no order as to costs.