' NASIR ASLAM ZAHID, ACTG. C.J.---Respondent No,1 is the Union Bank of Middle East (hereinafter referred to as "respondent-bank") and the petitioners have joined the Additional Registrar (0.S) of this Court as respondent No,2. Respondent-Bank filed a suit in the High Court of Sindh against Permanent Trading Company (Pvt.) Limited and nine other defendants for recovery of Rs,27,068,036.70. Certain facilities had been obtained by the said company from respondent-Bank including overdraft and export finance facility for financing its exports. Directors/Guarantors of the company were also joined as co-defendants including legal heirs of one deceased director/guarantor. Two of the defendants are the petitioners in this Constitutional petition. On being served with summons of the suit filed by respondent Bank under the Banking Companies (Recovery of Loans) Ordinance, 1979, the petitioners filed an application for leave to defend the suit under Order 37, Rule 3, C.P.C. The said application was heard by learned Single Judge of this Court and, by the impugned order dated 20-10-1989, conditional leave to defend the suit was granted to the petitioners. The petitioners filed a High Court Appeal challenging the impugned order of the learned Single Judge on the ground that they had made out a case for grant of unconditional leave and the order of the learned Single Judge granting conditional leave was not sustainable in law. However, according to the petitioners, on an objection raised by the office of this Court about the non-maintainability of the appeal against an order which was not the final order, the petitioners withdrew the High Court Appeal with permission to avail other remedies that might be available to them under the law. The petitioners then filed the present Constitutional petition under Article 199 of the Constitution praying that the impugned order dated 20-10-1989 of the learned Single Judge of this Court be set aside and the petitioners be granted unconditional leave to defend the suit filed by respondent-Bank.
2. This petition came up for hearing before us on 27-5-1991 and, after hearing Mr. Nasim A. Faruqui, learned counsel for the petitioners, by our short order, this petition was dismissed in limine. Reasons for dismissal of the petition are contained in this order.
3. In view of clause (5) of Article 199 of the Constitution, according to which, the word "person" used in Article 199, does not include a High Court, it A was pointed out to the learned counsel for the petitioners that the present Constitutional petition was not maintainable as it challenged an order of the High Court. Mr. Nasim A. Faruqui, learned counsel for the petitioners however, contended that, while exercising jurisdiction under the Banking Companies Ordinance, 1962, a Judge of the High Court acts as a persona designated and not as High Court. Learned counsel referred to the definition of Special Court given in the Ordinance of 1962 and submitted that the Judge who decides suit under the Ordinance is a Special Court. There is no merit in the contention. Under section 2(f) of the Banking Companies (Recovery of Loans) Ordinance, 1979 Special Court has been defined to mean as follows:-- "(i) 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 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 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 jursdiction.
When, therefore, a Judge of this Court exercises jurisdiction under the B Banking Companies (1c, -.Overy of Loans) Ordinance, 1979, he acts as the High Court and not as persona designata.
4. The other contention raised by Mr. Nasim A. Faruqui, Advocate, was that as no appeal lay against the interlocutory order passed by the learned Single Judge, a Constitutional petition was maintainable. On this ground alone a Constitutional petition is not maintainable.
5. Reference may also be made to a decision of a Division Bench of this Court in the case of Oriental Fashions Ltd. And others v. National Bank of Pakistan (PLD 1985 Kar. 178) where similar contentions were raised but were rejected. In that case, the High Court was dealing with a petition under Article 9 of the Provisional Constitution Order, 1981, but the provision being similar, ratio of the said decision on the points relating to maintainability of the Constitutional petition would be applicable. The relevant part of the judgment reported in PLD 1985 Kar. 178 is reproduced here:-- "It may be mentioned that the present petition is under Article 9 of the P.C.O. 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 decided or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection 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."
(iii) "(9). In this Article, unless the context otherwise requires,--"person" include anybody 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
(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 performing function 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 Provincial 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.O. 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 simpliciter will not itself justify invoking Constitutional jurisdiction. Prerequisite for pressing into service Constitutional jurisdiction is to show that the impugned order is without jurisdiction or in excess of jurisdiction or suffers from an infirmity of the nature which would involve jurisdictional defect."
' We agree with the aforesaid view taken in PLD 1985 Kar.
178.
6. In the present petition, filed under Article 199 of the Constitution, the petitioners want a declaration that the impugned order passed by a learned Single Judge of the High Court is without lawful authority and of no legal effect. In view of clause (5) of Article 199 of the Constitution, as the word "person" used in Article 199 does not include a High Court and the impugned order has been passed by the learned Single Judge as the High Court, this petition is not maintainable.
The argument that this Constitutional petition is maintainable as no appeal was available against the impugned order, is also without merit as mere non-availability of appeal against an order would not by itself be sufficient to maintain a constitutional petition under Article 199 of the Constitution.
7. For the aforesaid reasons, this Constitutional petition was dismissed in limine.