NAIMUDDIN, J.---This is an appeal, by leave, from the judgment of the High Court of Sindh dated 5- 8-1985 passed in Constitution Petition No.D-130 of 1984.
2. The facts giving rise to this appeal, briefly stated, are that respondent No.4, being a partnership firm, filed a Suit, being Suit No.14 of 1977, in the Court of Senior Civil Judge, Dadu against respondent-2 for recovery of Rs.1,77,500. Respondent-4's case in that suit was that it had pledged 17,300 maund of rice and paddy at Rs.25 per maunds of a total value of Rs.4,32,500 with respondent-2 at its Tharri Mahabbat Branch in or about November/December, 1973 and against the pledge of the rice and paddy a sum -of Rs.1;80,000, including interest was then outstanding against it.
3. As the rice mills were nationalised with effect from 17-7-1976, respondent-4's business suddenly came to a stop and the lease agreement with the owners of the rice milling plant stood terminated and the Government took the rice mills with all its plants and equipments.
4. It may be mentioned that originally the suit was filed in the Court of Senior Civil Judge, Dadu, but, on establishment of the Special Court (Banking) Sindh the suit was transferred to it.
5. According to the allegations made in the plaint by respondent-4, the stock of rice and paddy lying with respondent-2 had been auctioned in January, 1977 without its knowledge. It was further alleged that the sale proceeds of the goods auctioned were not credited to its account.
6. The said suit was still pending when respondent-2 filed a suit, being suit No.70 of 1980, before respondent-1 against Rice Milling Corporation of Pakistan, and Government of Pakistan, respondent-3, and the appellant before us.
7. This suit was decreed in the sum of Rs.6,23,034 with cost and interest at the rate of 4 per cent above the banking rate with quarterly rests, from the date of the suit. However, no decree was passed against respondent-3 and the appellant herein.
8. During pendency of Suit No.14 of 1977, respondent-4, filed an application under Order 6, Rule 17 read with Order 1, Rule 10, C.P.C., for joining respondent-3 as necessary party. Respondent-4 also sought to increase the amount of claim from Rs.1,77,500 to Rs.5,52.500 as, according to it, lesser amount was claimed due to bona fide mistake.
9. Respondent-1 dismissed the application by its order dated 8 11-1983 holding that the suit against Rice Milling Corporation of Pakistan, respondent-3, could not be filed as the Court can entertain the suit regarding the loan between the borrower and the Bank as provided in section 6(1)(a) of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter to be called as `the Ordinance'). Respondent-1 further held that according to the definition of word `Borrower', it means a person who has obtained a loan from a banking company and includes a surety or an indemnifier and since respondent-3 and the appellant were not the borrowers froth respondent-2, they could not be joined as parties in the suit.
10. As regards the increase of the amount from Rs.1,77,500 to Rs.5,52,500, it was held by the Special Court that the suit was filed originally in the Court of Senior Civil Judge, Dadu on 5-3-1977 which was received by the Special Court on 8-11-1979, when it was at the stage of final hearing. The cause of action accrued in 1975 and the application for amendment was filed on 6-10-1981. Therefore, the application was barred by time.
11. This order of respondent-1 was questioned by respondent-4 in a Constitution Petition, as stated above. The Constitution Petition was allowed by the High Court by the judgment impugned in this appeal.
12. A preliminary objection was raised on behalf of respondents other than respondent-4, that the petition was not maintainable as the order passed by respondent-1 was appealable under section 12 of the Ordinance while on behalf of respondent-4 it was submitted that the impugned order has been passed on a interlocutory application and it had not disposed of the suit before the Special Court (Banking) Sindh and, therefore, it was not appealable.
13. The High Court on examination of the provisions of section 12 and relying on the proviso to section 12 of the Ordinance held that proviso to subsection (1) of section 12 of the Ordinance bars an appeal from an interlocutory order which does not dispose of entire case before the Special Court. The High Court further held that the important expression in the proviso is "entire case" and that since the order passed on the application did not dispose of the entire case, the order was not appealable and therefore respondent-4 could challenge the same by way of a Constitution Petition. After considering the case on merits, the High Court allowed the petition and set aside the order sated 8-11-1983 passed by the Special Court and directed the Special Judge to consider the application in the light of the observations made in the impugned judgment.
14. We have heard Mr. Shahadul Haq, learned counsel for the appellant, Mr. Mansoor Ahmed Khan, learned counsel for respondent-2 and Mr. Abdul Aziz Khan, learned Advocate-on-Record for respondent-4.
15. Mr. Shahudul Haq submitted that the High Court seriously erred in entertaining a Constitution Petition against air order passed by respondent-1. He further submitted that the order of respondent-1, impugned before the High Court was not one passed without lawful authority. At best, without conceding, it was erroneous. He also submitted that even if the order was not appealable, being an interlocutory order, it could be challenged by respondent-1 when the suit was finally decided.
16. The first two submissions have force. The order passed by respondent-1 was in exercise of its discretionary powers. Even if it is to be held that the discretion has not been exercised properly, still it cannot be denied that the Special Court had jurisdiction in the matter. Assuming that the order is erroneous it would not make it an order without jurisdiction and, therefore, would not attract the Constitutional jurisdiction of the High Court under Article 199 of the Constitution.
17. Mr. Shahudul Haq, learned counsel for the appellant, relied in support of his contentions on (i)
Abdul Rahman Bajwa v. Sultan and 9 others PLD 1981 SC 522, (ii) Sub. Muhammad Asghar v. Mst.
Safia Begum PLD 1976 SC 435 and (iii) Government of N.-W.F.P. v. Muhammad Said Khan and others PLD 1973 SC 514. In the first mentioned case it was observed by this Court at page 526 of the Report as follows: "11. The question of jurisdiction of the High Courts under Article 199 has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction."
In this case, besides other judgments noticed above, reliance was placed on Badrul Haque v. The Election Tribunal, Dacca PLD 1963 SC 704, Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, Zulfikar Khan Awan v. Secretary, Industries and Mineral Development, Government of Punjab and 8 others 1974 SCMR 530.
18. We also find support for this view from another judgment of this Court cited by Mr. Mansoor Ahmed Khan, namely, Abdul Rahim and another through L.Rs. v. Additional Settlement Commissioner, Sargodha 1991 SCMR 259, from which also a passage can be quoted with advantage. It reads as follows:----- "...The High Court under Article 199 of the Constitution would examine if an order challenged before it is passed with or without lawful authority ........................Learned counsel for the appellant has referred to Altaf Hussain v. Shabbir Hussain PLD 1961 (W.P.) Lahore 449, Gul Muhammad v.
Settlement Commissioner PLD 1968 Kar. 669, Apparao Baburao v. Vithal Govind AIR 1931 Born. 408, Kalenthar Ammal v. Ma Mi AIR 1926 Rangoon 9 in support of his contention. The Additional Settlement Commissioner has exercised the powers vested in him. The order passed by him was not without lawful authority. The learned High Court had in such circumstances no valid reason to annul the order of the Additional Settlement Commissioner."
19. This Court in a case decided recently, namely, Shaikh Gulzar Ali & Co. Ltd. And others v. Special Court of Banking and another 1991 SCMR 590 observed as follows: " ....The principle enunciated is that it would not be correct for the High Court in its Constitutional jurisdiction to take over the function of the machinery provided by the statute. The grievance of the petitioners is that the remedy provided by the statute is burdened with the condition of furnishing security for the amount of the decree or the deposit of the decretal amount but that is within the realm of the wisdom of the legislature. We are unable to agree with the learned counsel that an appeal provided under section 12 of the Ordinance, is a negation of the right of appeal, for the simple reason that the right of appeal is not an inherent right ensured by any higher law to be available to the citizen in every case. It is well recognized that the right of appeal is a creature of the law. In the present case the petitioners had filed an appeal but later on at the hearing of the appeal and the Constitutional petition together, they gave up the appeal by withdrawing the same.
Learned counsel submits that the Constitutional jurisdiction was invoked before the appeal was filed. Be that as it may the fact remains that they had exercised a right of appeal but gave it up because they did not wish to comply with the prerequisite for the entertainment of such appeal. In the circumstances we are unable to agree that the petitioners had no other adequate alternate remedy."
Although the impugned order in that case was passed on an application under Order XXXVII, Rule 3, C.P.C., granting conditional leave to defend the suit on furnishing security, and not on an application under Order 1, Rule 10 or under Order 16, Rule 17, C.P.C., yet there is no doubt that the order could be made a ground in the appeal from the final judgment. Thus, alternative remedy by way of appeal under section 12 of the Ordinance was available.
20. We may mention that in the case mentioned in para 19 above reliance has been placed on (1)
Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139, (2) Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246, (3) M/s. Hudabiya Textile Mills Ltd. v.
Special Judge (Banking), Lahore 1985 SCMR 1571, (4) Noor Muhammad v. Sarwar Khan and others PLD 1985 SC 131 and (5) Civil Petitions Nos.455-K and 456-K of 1989, and the following cases were referred to: (1) Abdul Salam Qureshi and another v, Judge. Special Court of Banking, Sindh and another PLD 1984 Karachi 462 and (2) Crescent Factories Ghee Mills v. N.B.P. PLD 1985 Lahore 150.
With reference to last mentioned case, it was observed as follows: "13. In Crescent Factories Ghee Mills v. N.B.P. PLD 1985 Lahore 150 a learned Single Judge declined to accept a Constitution petition challenging an order passed by the Special Judge, Banking Court granting leave to defend subject to deposit of entire suit amount. He referred to Chaudhry Automobile Auto Store v. United Bank Limited PLD 1984 SCMR 749 and Sh. Abdul Majeed v. United Bank Limited 1984 SCMR 1434 decided by this Court and observed that in these two cases this Court had refused to interfere on the ground that severity of conditions imposed by the Trial Court in granting leave to defend is a matter falling within the discretion of that Court. The learned Judge then observed that in several writ petitions the Lahore High Court had taken the view that the question relating to grant of permission conditional is in the discretion of the Court and was not amenable to judicial review in Constitutional jurisdiction."
21. As regards the last submission, namely, that even if the order was not appealable, being an interlocutory order, it could be challenged by respondent-1 when the suit was finally decided, it has already been dealt with hereinbefore.
22. It is, however, submitted by Mr. Abdul Aziz Khan, learned A.O.R. For respondent-4, that an observation may be made that it will be open to respondent-4 to question the interlocutory order when it files an appeal, if such a necessity arises. Subject to all just exceptions, respondent-4 could question the order in appeal from the judgment/decree of respondent-1.
23. We may also mention that Mr. Mansoor Ahmed Khan stated that he indirectly supports the submissions of Mr. Shahudul Haq. Indeed, he cited the case of Abdul Rahim (supra) which supports the submissions of Mr. Shahudul Haq, as mentioned hereinbefore.
24. In the result, we allow this appeal and set aside the impugned order of the High Court. The parties shall bear their own costs in the circumstances of the case.