1. ZAFFAR HUSSAIN MIRZA, J.---This is a petition for leave to appeal against the judgment of a Division Bench of the Sindh High Court, dated 13th April 1989 dismissing the Constitution petition filed by the petitioners to challenge the order passed by the Special Judge, Special Court of Banking for Sindh at Karachi dated 30th September1981, granting leave to petitioners Nos.2 and 3 to defined the Suit filed against them by U.B.L., under Banking Companies (Recovery of Loans)
2. Ordinance, 1979, subject to the condition of furnishing security of Rs.20,00,000 each to the satisfaction of the Court.
3. Briefly the facts so far as necessary for the present purposes, are that U.131 respondent No.2 herein, instituted Suit No. 18 of 1981, in the Special Court (Banking) at Karachi, against petitioner No.1, which is a limited company and petitioners Nos. 2 and 3 who are its directors, for recovery of Rs.
4. 85,03,350.13 as due and payable in the overdraft account of petitioner No.1. On being served with summons the petitioners applied for leave to defend the suit separately. The Special Court by its order, dated 30th September; 1981, refused leave to defend the suit to petitioner No.1 and decreed the suit against it. However, by the; same order conditional leave to defend the suit was granted to petitioners Nos.2 and 3 upon conditions of furnishing security as stated earlier. The security was required to be furnished before 30th November, 1981. Admittedly petitioners 2 and 3 failed to furnish the required security within the prescribed tune, which was, however, extended at their request by the Special Court upto 30th January, 1982. The said petitioners once again failed to furnish the security even within the extended time with the result that tit: writ was decreed against them also on 30th 1rrr;iary. 1989. Petitioners Nos.2 and: 3 than filed separate applications for review of decree passed against them under section 114, C.P.C. Pending these applications as a result of the amendment in law Suit No. 18 of 1981, was transferred to the Original side of the Sindh High Court and registered as Suit No.275 of 1953. On the pending applications a learned Single Judge of the High Court passed a consent order, dated 5th November, 1985, extending the time for furnishing of security by the two petitioners by one month. It was directed that in the event of security being furnished the decree passed in the suit against the said petitioners shall stand set aside.
5. Petitioners Nos 2 and 3 in spite of this extraordinary concession made to them still failed to furnish the security.
6. It is in these circumstances that the petitioners simultaneously filed an appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (First Appeal No. 20 of 1982) and also filed Constitution petition to challenge the aforesaid order dated 30th September, 1981, as an order passed without jurisdiction and of no legal effect. The respondent No.2 raised preliminary legal objections to the maintainability of the Constitution petition on several grounds. The learned Judges of the Division Bench accepted these preliminary objections for the reasons which appear from file following passage of the judgment: "After hearing the learned counsel for the parties at length we are of the view that the preliminary objection regarding maintainability of the petition raised by the learned counsel for respondent No,2 are not without force. It is an admitted position in the case that subsequent to passing of impugned order dated 30-9-1982 the Special Court (Banking) decreed the suit against petitioners Nos.2 and 3 on 13-1-1982. The impugned order dated 30-9-1981, therefore, stood merged in the final decree passed in the case on 13-1-1982 and accordingly petitioners Nos. 2 and 3 could not successfully challenge the order dated 30-9-1981 without impugning the final decree dated 13-1- 1982. Apart from it, petitioners Nos.2 and 3, after passing of the impugned order dated 30-9-1981, sand expiry of the time foxed for furnishing of security, approached the same Court which passed the impugned order and prayed for extension of time for furnishing security which was granted by the Court. Aster passing of final decree dated 13-1-1982, the petitioners Nos.2 and 3 once again approached the same Court for further extension of time to furnish security and obtained orders thereon on 5-11-1985 by this Court after transfer of the suit, which extended the period for furnishing security by them by one month. The above steps taken by petitioners Nos.2 and 3 in the suit, clearly indicate their acquiescence not only to the jurisdiction of the Special Court but also in the impugned order dated 30-9-1981 and as such they cannot be allowed to challenge the same.
7. Similarly the consent order dated 23-2-1986, passed in the suit by this Court shows that the petitioners have accepted the final decree in the suit and have even agreed to the mode of its execution against them. The petitioners have not challenged this last order. We are, therefore, of the view that the above conduct of petitioners clearly disentiled them from invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution. In view of our above conclusion, it is not necessary to decide other controversies in the case. The petition is accordingly dismissed but there will be no order as to costs."
8. In support of this petition Mr. Khalid Ishaque learned counsel for the petitioners raised several contentions. In the first instance, he submitted that the learned Judges of the High Court erred in holding that inasmuch as some of the petitioners sought time to furnish security as directed by the impugned order before the High Court, the petitioners had lost their remedy in the Constitutional jurisdiction by waiver and acquiescence. He submitted that the Constitutional petition was based on the assertion that the order of the Court dated 30th September, 1981, was void and without jurisdiction, and that being so the superstructure of further orders raised on the foundation of such void order would also likewise fall alongwith such order.
9. On the same principle he also submitted that the learned Judges erred in law and fact, in holding that the petitioners Nos:2 and 3 could not challenge the aforesaid impugned order without challenging the final decree passed by the Court, dated 13th January, 1982, on the principle of merger.
10. As regards acquiescence learned counsel contended that the basic order, dated 30th September, 1981, being without jurisdiction, unlawful, arbitrary and void; the entire proceedings which followed thereupon were rendered illegal and suffered from the taint of lack of jurisdiction. Learned counsel also vehemently contended that by prescribing such harsh and impossible conditions to the permission for defence of the suit, which could not be fulfilled by the petitioners, the trial Court virtually deprived them of a reasonable opportunity to present their defence which has resulted in the violation of the Constitution and the principle of natural justice. Having committed this error, the matter fell outside the ambit of the authority of the Special Court, which was liable to be called in question in the Constitutional jurisdiction.
11. Finally learned counsel submitted that the remedy provided by section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, was not adequate alternate and efficacious remedy to debar the petitioners from tiling a Constitutional petition. In this behalf he submitted that the said section is a negation of the right of appeal, as the appeal cannot be entertained unless the appellant deposits in Court the amount decreed or furnishes security for such amount as directed by the Court.
12. If the contentions raised by the learned counsel are analysed the ultimate burden of all the contentions is that the impugned order before the Division Bench of the High Court, dated 30th September, 1981, was void and without jurisdiction. The whole argument of the learned counsel turns on that basic proposition. Therefore, the basic question is whether the order impugned in the Constitutional petition was passed by the Special Court without lawful authority and was of no legal effect, so as to sustain a Constitutional petition under Article 199 of the Constitution.
13. Mr. Khalid Ishaque in support of his submission that the petitioners had no alternate adequate and efficacious remedy relied upon Mahboob Ali Malik v. The Province of West Pakistan PLD 1963 Lahore
575. This is a Full Bench decision of the. Lahore High Court which was constituted in order to consider the question of law whether the remedy provided by law, although adequate, the relief resulting from it would not be available when the petitioner needs it most, can be regarded as an "adequate remedy", or not within the meaning of Article 98. The other remedy in the reported case was before the Civil Court by means of suit. While formulating the practical steps to determine the question whether the other remedy under the law is adequate or not, the learned Judges laid down the following as one of the tests:-- "(c) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. 1t would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain."
14. This being one of the tests postulated by the learned Judges, it appears to us that in the present case the alternate remedy was adequate as well as efficacious. 1n tile first instance the other remedy provided by the statute, namely, an appeal under section 12 of the Ordinance, lies before the same forum i.e. The High Court. There is, therefore, no question of another forum under the statutory laws which was empowered to provide the remedy. 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 decrial amount but that is within tile 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 prerequisites for the entertainment of such appeal. In the circumstances we are unable to agree that the petitioners had no other adequate alternate remedy.
15. As to his submission that the petitioners' conduct in seeking extension of time for furnishing security or f ling review application did not have the effect of clothing the orders passed by the Special Court with legality, learned counsel placed reliance on Mansab Ali v. Amir and others PLD 1971 SC 124 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104. In these two cases the principle of law was recognized that if on the basis of void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.
16. There is no cavil with the rule postulated by this Court in the stated manner. However, the fundamental question still remains whether the order of the Special Court, dated 30th September, 1981, was void and without jurisdiction and if so whether it was subject to judicial review in the Constitutional jurisdiction of the High Court.
17. Learned counsel referred us to an unreported judgment in Constitution Petition No. D-1066 of 1986, (S. Abdul Quddoos Khan v. National Bank of Pakistan), by the same learned Judge who is the author of the judgment before us, who had in exercise of the Constitutional jurisdiction, quashed an order passed by the Special Banking Court granting conditional leave to defend the suit as without lawful authority and of no legal effect. The petition was allowed on the ground that the order was passed arbitrarily because in the opinion of the Division Bench that was not a case in which conditions could be imposed with any justification. It seems to us that the learned Judges did not specifically hold in the judgment relied upon that the order called in question before them was void and without jurisdiction. Suffice it to say that no authority has been quoted for the proposition that a mere error in the exercise of jurisdiction by the Special Court by imposing conditions on the orders granting leave to defend, would render the order arbitrary. We may here with advantage refer to a case not noticed by the learned Judges which was reported as Oriental Fashions Ltd. v.
18. National Bank of Pakistan PLD 1985 Karachi 178. In this case also conditional leave to defend was granted upon furnishing of security in the sum of Rs.28,00,000. This, order was Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246. 1n the above case the Hon'ble Supreme Court while considering the question of grant of leave against the judgment of the Lahore High Court passed in writ petition in which the order passed under the late West Pakistan Rent Restriction Ordinance, 1959, was impugned observed that the Tribunal having jurisdiction to decide a matter competent, to decide it rightly or wrongly and the mere fact that another conclusion was possible on evidence adduced does not make it a case for interference in exercise of Constitutional jurisdiction.
(iii) Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another PLD 1984 Karachi 462. In the above case a Division Bench of this Court while considering the propriety of an order passed by the Tribunal under the Ordinance pointed out the distinction between an act wholly without jurisdiction and an act done in improper exercise of that jurisdiction. It was held that merely a wrong decision would not render the decision without jurisdiction and the reliance was placed inter alia on the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 and the above case of Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139."
19. 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 Ltd. 1984 SCNIR 749 and Sh. Abdul Majeed v. United Batik Limited 1984 SCh1R 1343 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 or unconditional is in the discretion of the Court and was not amenable to judicial review in Constitutional jurisdiction.
20. In M/s. Hudaybia Textile Mills Ltd. v. Special Judge (Banking), Lahore 1985 SCMR 1571, such a conditional order of leave to defend was challenged in Constitutional jurisdiction and the petition was dismissed by the High Court. It was contended before this Court that imposition of conditions by the trial Court was not justified in the light of the principles laid down by the High Court and this Court. Dismissing the petition for leave to appeal, it was stated by this Court as under: "After hearing the learned counsel at length we, however, are unable to disagree with the High Court that the grounds urged are not sufficient for exercise of Constitutional jurisdiction to upset an order passed competently in exercise of jurisdiction by the special Court. We are not satisfied that any error of jurisdiction was committed in passing the impugned order before the High Court and the contentions advanced before us clearly relate to the merits of the controversy which fell squarely within the jurisdiction of the special Court to decide."
21. In Noor Muhammad v. Sarwar Khan and others PLD 1985 SC 131, an order passed in revisional jurisdiction by the Additional District Judge was challenged in a Constitutional petition, which was dismissed by the High Court. Leave to appeal was refused for the reason that the orders of Civil Judge and the Additional District Judge were passed in the lawful exercise of jurisdiction and consequently were not amenable to question in the Constitutional jurisdiction as orders without lawful authority. In this connection it was stated: "Before parting with the case we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, nothwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata), has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it `without lawful authority' and certainly not illegal."
22. Recently in C.P.L. As. Nos. 455-K of 1989 and 456-K of 1959, this Court, refused to interfere with the judgments passed by the Sindh High Court dismissing Constitutional petitions directed against orders passed by the Special Banking Court granting conditional leave to defend. It was contended that the imposition of conditions was arbitrary exercise of discretion. In the order, dated 3rd May, 1990, dismissing the two petitions (to which one of us i.e. Zaffar Hussain Mirza, J. Was a party) the reasoning of the High Court was upheld. The reasons that prevailed with the High Court were that the Special Court had jurisdiction to try the suit, that after considering the ground on which leave was sought the Court came to the conclusion that leave be granted with conditions attached to it.
23. And, therefore, the order did not suffer from lack of jurisdiction or any illegality or irregularity which may render the order a nullity in law or without jurisdiction.
24. It will, therefore, be seen from the review of the case-law referred to above, that the consensus of judicial opinion and the recent trend is that mere erroneous exercise of jurisdiction does not render the order passed by a Civil Court of competent jurisdiction to be illegal and without lawful authority, so as to be amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199. In the argument before us the only ground on which the order passed by the Special Banking Court was challenged, as already mentioned was that by prescribing harsh and impossible conditions to the order granting leave to defend, the petitioners' right of hearing was taken away in violation of the rules of natural justice and the Constitution. It has not been shown how such an order is violative of the Constitution of Pakistan. So far as the rules of natural justice are concerned it is well-settled that they can be modified by statute. In the present case in accordance with the requirements of the statute the Court had placed conditions on its being satisfied after considering the relevant matter, for leave to defend the suit. We cannot agree with the learned Judge that such an order contravenes the rules of natural justice. No other argument was advanced in order to show that the impugned order before the High Court was passed without: jurisdiction or in excess of jurisdiction. Clearly the Special Court was a properly constituted Court, the subject-matter before it was within its jurisdiction under the relevant law and the parties were also subject to its jurisdiction.
25. There is one notable aspect of the case which may be mentioned. From the impugned order in this petition, it appears after a final decree was passed by the Special Banking Court on 13th January, 1982, the suit stood transferred to the High Court as a result of certain amendments effected in the Ordinance. Before the transfer of the suit on 17th January, 1982, petitioners Nos.2 and 3 had filed separate applications under section 114, C.P.C., for setting aside the decree and giving them further time to furnish security in the case. But before these applications could he disposed of, the suit stood transferred to the High Court, with the result that these applications came up for decision before the learned Judge of the High Court on the original side in his jurisdiction under the Ordinance. The learned Single Judge passed a consent order, dated 5th November, 1985, which according to the impugned order before us, extended time for furnishing of a security in the sum of Rs.20,00,000 by each of the petitioners by one month and it was further provided in the said order that upon furnishing of security within the above period the decree passed in the suit against them on 13-1-1982 shall stand set aside. However, the aforesaid petitioners did not furnish security within the extended time and therefore in terms of the order of the learned Single Judge the decree passed by the Special Banking Court was further strengthened in its effectiveness by the order of the learned Single Judge. In the circumstances the order impugned in the Constitutional petition resulted in a decree which was adopted by the learned Single Judge at the instance of the aforesaid two petitioners themselves. Setting aside the impugned order and consequently the decree passed by the Special Court would also nullify the order of the learned Single Judge, dated 5th November, 1985. But it is well-settled that Constitutional jurisdiction under Article 199 is not amenable for questioning an order passed by a Judge of the High Court.
26. Additionally we are of the view that the petitioners cannot be permitted to challenge the order passed by the learned Special Judge, dated 30th September, 1981 and the decree following thereon dated 13th January, 1982, on the principle that a litigant cannot be permitted to approbate and reprobate in the course of the same proceedings. In this regard it is pertinent to mention that even after the passing of the final decree the petitioners did not challenge the aforesaid basic order as void and illegal, in any appropriate proceedings. Instead petitioners Nos.2 and 3 moved the Court for modification of the order that they obtained for extension of time to satisfy the conditions by furnishing security as ordered. This conduct on their part, may not amount to waiver or acquiescence or estoppel but it is well-recognized that a party cannot be allowed to play hide and seek with the Court. In such a case the conduct of the party disentitled him from challenging the order by the application of the aforesaid principle. In the facts of this case, therefore, the petitioners were rightly refused relief. In the Constitutional jurisdiction.
27. For the foregoing reasons we find no merit in this petition which is accordingly dismissed.