This is application under section 47, C.P.C. By the applicants/judgment-debtors challenging the validity of the decree passed by this Court on 18th February, 1987.
2. The facts rzlcvant for the present. Purposes are that a suit for recovery of Rs.43,99,619.86 was filed by M/s. National Bank of Pakistan, a Banking Company, against the defendants in this Court under the Banking Companies (Recovery of Loans) Ordinance, 1979. The defendants did not contest the suit and on their statements a preliminary decree for the recovery of the suit amount along with the cost was passed by this Court on 18th of August, 1986. At their request, the defendants were allowed to pay the decretal amount in monthly installments of Rs.1,00,000 each. The first instalment was to be paid on or before the 5th of July, 1986 and the subsequent instalments were payable by the 5th of each month. The defendants were also held liable to pay interest at the rate of 12 per cent per annum with quarterly rest from the date of institution of the suit till the payment of the total decretal amount.
3. On the failure of the defendants to discharge their liability in terms of the preliminary decree the final decree was passed on 18th February 1987. Thereafter an application for execution (ExA.10- B/87) was filed in this Court in which the property of the judgment-debtors was attached. The matter was thereafter adjourned at the request of the parties so as to enable them to settle it amicably. However, as no settlement could be made the Court after settling the terms of the auction ordered that the attached property be auctioned.
4. A number of adjournments were obtained by the judgment-debtors for arriving at some compromise with the decree-holder. The present application however, was filed by the defendants on 27th May, 1991 in which it was for the first time asserted that the decree passed by this Court on 18th February, 1987 was without jurisdiction and therefore, incapable of being executed. The ground on which this application is based is lack of jurisdiction. A reply to this application has been filed by the plaintiff-decree-holder and the arguments of the learned counsel for the parties have been heard.
5. The only contention raised by MrAbdullah Khan Dogar, the learned counsel for the applicants is that the Lahore H High Court cannot function as a Special Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 and the decree by it is a nullity. The learned counsel elaborating his contention argued that according to section 2 (f) of the Banking Companies (Recovery of Loans) Ordinance, 1979, Special Court in respect of cases where the outstanding amount of loan is in excess of one million, means the High Court in the exercise of its original jurisdiction. Relying upon the authority of the Supreme Court in Ahmad Khan v. The Chit -f Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and two others PLD 1968 SC 171, ~ it was emphasised that neither under the letters patent nor under an y law, the, Lahore High Court possesses any original civil jurisdiction in the absence of which it cannot function as a Special Court. The learned counsel also referred to the case of Firdaus Trading Corporation and others v. Japan Cotton & General Trading Co., Limited PLD 1961 (W.P.) Karachi 565.
6. It was further maintained that as there was inherent lack of jurisdiction the decree was a nullity and such question could be raised in execution. Syed Ahmad Hussain v. The Chief. Justice and Judges of the West Pakistan High Court PLD 1961 SC 162, Syed Akhlaque Hussain v. Habib Ismail Bajwa and another PLD 1969 Lahore 563 and Messrs Mullick Brothers v. Haji Muhammad & Brothers PLD 1955 Sindh 297, were cited in support of this proposition.
7. The learned counsel for decree-holder /respondent has on the other hand pointed out that this question was considered by this Court in Bank of America NT and SA v. M/s. Mairaj Sons Ltd., etc. (C.O.S.No.50 of 1983) by my learned brother M. Mahboob Ahmad, J. (as he then was) and was repelled on 9th of March, 1988.
8. The Banking Companies (Recovery of Loans) Ordinance, 1979, 'in its original form empowered the Government to establish Special Courts for the trial of certain suits filed under the Banking Companies (Recovery A Loans) Ordinance, 1979. However, by virtue of BanKing Companies (Recovery of Loans) (Amendment) Ordinance, 1983, the definition of the Special Court in section 2(f) was amended as follows:- S.2(0 "Special Court" means-- (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 i.,3 c)r has been a District Judge or an Additional District Judge and is appointed by the 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 jurisdiction."
9. The objection of the learned counsel for the petitioner is that as the Lahore High Court is not possessed any original civil jurisdiction, it cannot function as a Special Court. The argument is correct to the extent that this Court does not possess any original civil jurisdiction as was held in Ahmad Khan v. The Chief Justice and Judges of the High Court, West Pakistan. Through the Registrar, High Court of West Pakistan, Lahore and two others PLD 1968 SC 171. However, while repelling similar argument in M/s. Mairaj Sons (supra) it was observed by my learned brother M.
Mahboob Ahmad, J., A (as he then was) that section '2(f) if read with section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 vests this Court with original civil jurisdiction so as to try the suits arising under the Banking Companies (Recovery of Loans) Ordinance', 1979. After hearing the learned counsel for the petitioner I am not persuaded to take a different view and respectfully following the dictum in M/s. Mairaj Sons case hold that this objection of the respondent is without any force.
10. It cannot be doubted that under Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 a High Court can exercise such jurisdiction as has been or may be vested on it by the Constitution or the law. There is nothing which prevents the tanking Companies (Recovery of Loans) Ordinance, 1979, from being considered as one of such laws investing the Court with jurisdiction to try the suit in exercise of its original civil jurisdiction.
11. The learned counsel for the petitioner has referred to Kazi Abdul Majid v. The Province of Sindh through Secretary, Excise & Taxation and another PLD 1974 Karachi 417, Emperor v. Ghulain Ali Bahawal and others (38 Indian Cases 694) and also to Craies on Statute Law 7th Edition at pages 213, 215, 216 and 122 to argue that a definition clause cannot be construed as conferring jurisdiction on a Court or authority. He also relied upon The Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others (P~D 1988 S.C.53). I am however, unable to agree with the learned counsel on this score. Although it is true that generally definition clause is meant for ~providing guideline for interpreting the statute, there is no universal rule that such ' a clause can never be construed as conferring jurisdiction or as positive low itself. The legislature was fully aware of the state of law as it existed at the time when the Banking Companies (Recovery of Loans) Ordinance, 1979 was amended at that time except perhaps for the Sindh High Court, no other High Court in Pakistan had any original civil jurisdiction. Even with respect to Sindh High Court, it has been held in the judgment relied upon by the learned counsel for the applicant namely Firdaus Trading Corporation and others v., Japan Cotton & General Trading Co., Ltd. PLD 1961 (W.P.) Karachi 565, that the Sindh High Court tries the suits on its original side in exercise of statutory jurisdiction and not original civil jurisdiction. That being so, an intention cannot be imputed to the legislature that by amending section 2(f) it bad undertaken an exercise in futility. Section 6(1) of the Ordinance if read with section 2(f) is clearly indicative of legislative intent to confer jurisdiction on the High Court to try suits of the valuation of Rs.10,00,000 or more by exercising original civil jurisdiction. This aspect of the matter need not be dilated upon as it was considered in detail in M/s. Mairaj Sons' case wherein it was observed that:- "Otherwise also the well-settled principle for interpretation of statutes is that all the provisions of an enactment should be read conjointly so as to vest jurisdiction in a forum and that provisions of law should not be interpreted in isolation of each other and disjointedly so as to divest a Court of the jurisdiction. If the provisions of S.2(f)(i) and section 6(1) of the Ordinance are read conjunctively the jurisdiction in respect of the suit in hand obviously stands established especially when the jurisdiction has been conferred on the Special Courts envisaged by the Ordinance to the exclusion of all other Courts.
Again the conspicuous absence of the word "Its" as a prefix to the words "original civil jurisdiction" in Section 2(f)(ii) clearly shows the intentional non-use of the said word by the Legislature and establishes that the conferment of original civil jurisdiction for the purposes of trial of suits under the Ordinance was by the statute itself and was not intended to be under an already existing original civil jurisdiction of the High Court. It may also be observed here that it has been correctly pointed out by the, learned counsel for the plaintiff that the arguments of the learned counsel for the contesting defendants that the Lahore High Court is not possessed of the jurisdiction in this case whilst it is the Sindh High Court only which can try such suits as the said Court is possessed of the ordinary original civil jurisdiction stands defeated by virtue of the dictum in Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. Reported as PLD 1961 (W.P.) Kar.565 wherein it has been held that the trial of the suits by the Sindh High Court in the original jurisdiction is under a statutory jurisdiction and not in the ordinary original civil jurisdiction as may have been conferred by the Letters Patent of the High Court."
For the reasons aforesaid I do not find any force in this application which is dismissed with costs.
A.A./N-30/L