' MAMOON KAZI, J.---The appellant has challenged the order, dated 7-12-1989 passed by a learned Single Judge of this Court dismissing the appellant's application filed under Order 37, rule 4, C.P.C.
2. The facts of the case, briefly stated, are that the respondent which is a banking company had filed a suit for recovery of Rs,36,72,308.27 from the appellant alleging that the respondent during the years 1974-75 to 1977-78 had made advances to numerous growers/sellers of sugarcane and the appellant had stood guarantor for the repayment of the said advances. It may be pointed out that the said growers/sellers of sugarcane had defaulted in payment of the said loans and the aforesaid sum was due to the respondent on account of the said loans.
3. It may be pointed out that an application for leave to defend was filed on behalf of the appellants before the learned Single Judge of this Court. However, on 26-1-1987 the said application was dismissed for non-prosecution and the suit filed by the respondent was decreed in its favour on 10-5-1987. Thereafter, the appellant filed the said application under Order 37, rule 4, C.P.C. requesting the Court to set aside the decree which was, however, dismissed by the impugned ordei which ultimately resulted in filing of the present appeal.
4. At the very outset Mr. Mansoor-ul-Arfin, learned counsel for the respondent has raised a preliminary objection in regard to the maintainability of this appeal. It has been pointed out that, as the caption suggests, the appeal has been filed under section 3 of the Law Reforms Ordinance, 1972 whereas the same could be maintainable only under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 since the suit had been filed in this Court under the provisions of the said Ordinance. Section 12 of the said Ordinance which provides for an appeal by an aggrieved person in respect of any order, judgment, decree etc. passed by a Special Court restricts by virtue of the proviso to subsection (1) of section 12 the right of appeal against an interlocutory order which does not dispose of the entire case before the Special Court and subsection (5) of section 12 creates a further clog by laying down that: "No appeal shall be admitted for hearing unless the appellant deposits in cash with a High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount."
' Reliance has been placed by Mr. Mansoor-ul-Arfin on the case of Muhammad Muzaffar v. Allied Bank of Pakistan PLD 1987 Kar. 501 and an unreported judgment of the Supreme Court in Civil Petition No,72-K/89 (Muhammad Tufail v. Habib Bank Ltd.). In the first case, which was decided by a Division Bench of this Court a question arose whether an appeal was maintainable in respect of an order of a Single Judge of this Court which had been passed in the exercise of jurisdiction under the Banking Companies (Recovery of Loans) Ordinance when the same was an interlocutory order which did not dispose of the entire case. It was held by the Division Bench as follows:-- "A perusal of the above caption of the appeal indicates that the appellant has also referred to section 12 of the Ordinance. In our view since the application was decided by the learned Single Judge while dealing with a suit filed under the provisions of the Ordinance the right of appeal, if any, is to be pressed into service in terms of the provisions of the Ordinance and not from any general law on the subject. Proviso to subsection (1) of section 12 of the Ordinance bars an appeal from an interlocutory order which does not dispose of the entire case before the Special Court. In presence of the express bar we cannot hold that an appeal is competent because of section 3 of Ordinance of 1972. If we were to agree with the above submission of Mr. Shehanshah Hussain, we would in fact be rendering the above proviso to subsection (1) of section 12 of the Ordinance redundant. It has been held consistently that no appeal is competent against an interlocutory order which does not dispose of the entire case before the Special Court. In our view the words 'Special Court' will include the High Court for the purpose of section 12...
' The above-quoted observation indicates that the ordinary incidents of the procedure of an established Court are to attach if reference is made to the established Court without more in the relevant provision of the statute for the purpose of adjudication. The use of the words `without more' is of great significance. They connote that in case if there is anything contrary provided in the relevant provision of the statute, in that event the principle enunciated in the above-quoted observation will not be applicable. In the present case the Ordinance under which the suit was filed and the application in question was decided itself expressly provides contrary in the aforesaid proviso to subsection (1) to section 12 to what is an ordinary incident of final order passed by a Single Judge of the High Court in exercise of original civil jurisdiction in the form of a right of appeal under section 3 of Ordinance of 1972."
' In the case decided by the Supreme Court once again one of the questions before the Supreme Court was whether the appeal filed by the petitioner on the appellate side of the High Court was competent and maintainable under the Law Reforms Ordinance, 1972 and whether the petitioner was not required to comply with the requirements of section 12(5) of the Ordinance. Zaffar Mirza, J. who delivered the judgment for the Supreme Court observed as follows:--- "In the light of the aforesaid it is easy to appreciate that although jurisdiction under Ordinance was conferred on the High Court in the exercise of original civil jurisdiction in the matter of appeal from an order, judgment or decree passed by the High Court in the exercise of such jurisdiction, the appeal was governed by section 12 and the limitations provided therein. The provisions of section 3 of the Law Reforms Ordinance, 1972 and section 12 of the Ordinance, which is the special enactment conferring jurisdiction are repugnant to such other, at least inasmuch as no limitation of the nature provided for by subsection (5) of section 12 has been placed on the right of appeal under section 3(1) of the Law Reforms Ordinance, 1972. Therefore, in consonance with the dictum laid down in Hudaybia's case, the special provisions contained in section 12 with regard to the appeals will override the provisions with regard to the general right of appeal from the decision of the High Court in its original civil jurisdiction. We are, therefore, unable to accept the contention of the learned counsel that the appeal filed by the petitioner from the judgment and decree under the Ordinance passed by the learned Single Judge was not governed by section 12 of the Ordinance."
5. Mr. Noor Muhammad, learned counsel for the appellant has, however, argued that although powers of the Special Court under the Banking Companies (Recovery of Loans) Ordinance in respect of cases in which the outstanding amount of loan exceeds one million rupees have been conferred on this Court but when jurisdiction is exercised by a Court already established, then all the incidents of the procedure of that Court would apply to proceedings before that Court.
Consequently, an appeal under the Law Reforms Ordinance would be competent in respect of the impugned order. The learned counsel has referred to the various provisions of the aforesaid Ordinance in support of his contention.
6. It may be pointed out that according to section 2(f) of the said Ordinance "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 is or who 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 jurisdiction:"
' Section 3 of the said Ordinance provides--- "3. Ordinance not to derogate from other laws.---The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force."
' Section 6 further provides that a Special Court shall:--- "(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); (b)
' Section 7 of the Ordinance further provides as follows:--- "7. Procedure of Special Court:---(1) Suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded a Special Court shall not allow adjournment.
(2) In the exercise of its civil jurisdiction, the Special Court shall in all suits before it, including suits based on mortgages of all kinds or statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908)."
' Section 12 of the Ordinance which deals with appeals and is the most important section for the purpose of this case provides as follows:--- "12. Appeals:---(1) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed: ' Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.
(2) An appeal under subsection (1) shall be on any one of the following grounds, namely:---
(a) the decision being contrary to law or to some usage having the force of law, or
(b) the decision having failed to determine a material issue of law or usage having the force of law, or
(c) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits.
(3) An appeal may be preferred under this section from decision made ex parte.
(4) An appeal under this section shall be heard by a Bench of not less than two Judges.
(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with a High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount."
7. Perusal of the above provisions clearly indicates that the definition of the "Special Court" does not only include the Special Court constituted under the provisions of the Ordinance by the Federal Government by a notification in the official Gazette but the same would also include the High Court in exercise of its original civil jurisdiction. Section 6 indicates that the Special Court has been vested with jurisdiction in respect of claim filed by "Banking Company" against a "borrower" or by a "borrower" against a "banking company" and in respect of, or arising out of, a "loan" and such Court has been vested in this regard with all the powers of a Civil Court under the Code of Civil Procedure.
Subsection (2) of section 7 further indicates that the Special Court in the exercise of its civil jurisdiction has been vested in case of all suits before it including suits based on mortgages or statement of accounts or recovery of money paid to or to the order of the defendant with powers under the summary procedure provided for in Order 37 in the First Schedule to the Code of Civil Procedure. Section 12 then provides for appeals in respect of any order, judgment, decree etc. passed by the Special Court to the High Court to be heard by a Bench of not less than two Judges.
Nothing can be spelled out from the aforesaid provisions to indicate that they were intended to draw any distinction between the powers or functions of a Special Court constituted by the Federal Government by a notification under the provisions of the said Ordinance or the High Court while exercising its original civil jurisdiction in respect of cases reference to which has been made earlier in this judgment. Section 12 of the said Ordinance which refers to appeals in respect of any order, judgment or decree passed by a Special Court also provides for such appeal to the High Court which according to section 12(4) of the said Ordinance, is to be heard by a Bench of not less than two Judges. Mr. Noor Muhammad has argued that as is indicated by the language of subsection
(1) of section 12 no separate provision has been made by the Legislature in respect of appeals which may be filed against a judgment passed by a Judge of the High Court while exercising jurisdiction under the provisions of the said Ordinance. In our view, the answer to this argument can be found in the observations made in the judgment of the Supreme Court and that of a Division Bench of this Court, reference to which has already been made in this judgment.
8. We are, consequently, of the view that no appeal can be filed under section 3 of the Law Reforms Ordinance or even under the provisions of Ordinance X of 1980 in respect of an order, judgment or decree passed by a Single Judge of this Court while exercising jurisdiction under the provisions of the said Ordinance except as provided by section 12 of the said Ordinance. So far as the impugned order in the present case is concerned, it is nobody's case that the same can be regarded as an interlocutory order but notwithstanding the same no appeal under section 12(5) of the said Ordinance is to be admitted for hearing in respect of the same unless the appellant deposits in cash with the Court an amount equivalent to the judgment debt or in the alternative furnishes security equal in value to such amount as provided by the said subsection. We have asked Mr. Noor Muhammad whether the appellant is prepared to either deposit the amount in this Court or furnish security as provided by section 12(5) of the said Ordinance. The answer of the learned counsel is, however, in the negative. Under such circumstances, notwithstanding the fact that the appeal filed by the appellant was admitted by another Division Bench of this Court but such admission being irregular this appeal cannot be heard and decided by us on merits unless the appellant first complies with the requirements of section 12(5) of the said Ordinance. Since the learned counsel for the appellant has very candidly stated before us that the appellant is not in a position to comply with the requirements of section 12(5), we have no other option but to dismiss this appeal.
9. In the result, this appeal is dismissed. The parties are, however, left to bear their own costs.