1. ' In these suits more or less similar questions of law and fact arise, at least at this stage of the proceedings. Such have a nexus with the jurisdiction of the Banking Tribunals under the Banking Tribunals Ordinance, LVIII of 1984. A common plea is that the relevant suit at the time it was instituted in this Court could either not be filed before the Banking Tribunal under the said Ordinance, the tribunal not being functional till 1-8-1991, when the present incumbent, Mr. Justice (Retd.) K.A. Ghani, was appointed or the jurisdiction of such tribunal, according to other contentions raised, in the applicable suits, was ab initio not attracted at all. Before dilating upon such questions of jurisdiction and ancillary matters it will be appropriate to briefly detail the facts of each case, as such facts figure on the record:--
(j) Suit No,672/1990. Shafiq Hanif (Pvt.) Limited v. The B.C.C.I. is a suit for recovery of Rs,1,393,802 and injunction. This suit proceeds on the ground that the plaintiff, which is an exporter shipped certain goods to Hong Kong and handed over the shipping documents to the defendant-Bank for collection of payment under an arrangement with reference to the Export Re-finance Scheme whereupon a maximum of 6% was chargeable but the hank, transgressing, has raised claim at 16% per annum. It is further urged that the bank could not despatch the shipping documents before crediting due "finance". In the written statement submitted by the defendant-Bank the suit is claimed to be non-maintainable for want of jurisdiction and absence of cause of action. As regards providing re-finance before despatch of the shipping documents it is said that such was in the discretion of the bank. It is claimed that the plaintiff owes a sum 'of Rs,5.489 million to the defendant with mark-up thereon because then the Banking Tribunal was non-functional. Mr. Muhammad Sharif appears for M/s. Shafiq Hanif (Pvt.) Ltd. And Mr. Syed Iqbal Ahmed represents the B.C.C.I. Though in the bank's suit M/s. Mansoor Ahmed Khan & Co. Act for Shafiq Hanif (Pvt.) Ltd.
2. And others.
(ii) Suit No, Nil of 1991 B.C.C.I. v. Shafiq Hanif (Pvt.) Ltd. Is the Bank's counter-suit for recovery and was filed in this Court on 10-6-1991
(iii) Suit No,736 of 1990. B.C.C,I. v. Fine Food Industries (Pvt.) Limited and others: Instituted on 30-6- 1990, this is a suit for recovery of Rs,29,54,572 under the Banking Tribunals Ordinance, 1984. In the written statement filed by the defendants Nos.1 to 3 the claim on merits is denied, as allegedly incorrect and improper debit entries are made and credits are not duly reflected. The plaintiff is represented by M/s. Liaquat Merchant & Co., the defendants Nos.1 to 3 appear through Mr. B.M.
3. Bangash, Mr. A.I. Chundrigar is for defendant No,7 (IDBP) and Mr. Niaz Ahmad Khan has filed power for the defendants Nos.4 to 6 and 8, the defendant No,8 being the Agricultural Development Bank of Pakistan, a prior mortgagee.
(iv) Suit No,203 of 1991. U.B.L. v. Entreprises VI and another. This suit for recovery in the sum of Rs,21,350,000 was instituted on 13-10-1990 and the claim is based on non-interest demand finance in circumstances that the defendant No,2 allegedly informed the plaintiff-bank that he wanted to purchase from the defendant No,1 truck chassis/vehicles of the total value of Rs,20 million and that on approval of finance the plaintiffs, do pay such amount to the defendant The two defendants are said to have assured the Bank that the defendant No,1, as seller, shall hand over all papers pertaining to the chassis/vehicles to the bank, which papers would be in the joint names of the plaintiff-Bank and the defendant No,2. Pay orders were, accordingly, issued and the defendant,No,1 encashed the same. The documents pertaining to the sale of the chassis/vehicles were, however, not forwarded to the plaintiffs. Later the deferidant No,1 completely denied factum and even knowledge of the transaction. The defendants are, therefore, claimed to have colluded in hausing loss to the plaintiff, giving rise to the claim in suit. No written statement seems to have been filed.
4. The plaintiff-Bank is represented by M/s. Mansoorul Arfin and Habibullah Samo while Mr. S. Iqbal Ahmed appears for the defendant No,1 and Mr. Iqbal Kazi for the defendant
(v) Suit No,432 of 1991. U.B.L. v. M/s. Alintco (Pvt.) Ltd. And others.- -This suit, brought on 12-3-1991, for recovery of Rs,3,70,40,466 under sections 6 and 8 of the Banking Companies (Recovery of Loans)
5. Ordinate, 1979 has only a remote nexus with a cash credit finance limit because, in November, 1987 the defendants fully adjusted the cash credit but continued to enjoy F.T.R. (Finance Trust Receipts) facility. A fresh "finance" agreement was concluded on 30-6-1989. In the period following the defendants made only nominal payments giving rise to the claim in suit. No written statement has been filed by the defendants. M/s. Mansoor Ahmed Khan & Co. Are for the plaintiff whereas Mr. Mustufa Lakhani represents the defendants Nos.1 to 4.
(vi) Suit No,433 of 1991, N.D.F.C. v. MJs. Paksaco Limited and others. --The suit, instituted on 1-4-1991, is for recovery of Rs,23,782,904 under the Banking Tribunals Ordinance, 1984. The plaintiff, which is a banking company, included in the schedule to-the Banking Tribunals Ordinance, 1984, is stated to have granted to the defendant No,1 working capital finance to the tune of Rs,20,000,000 on 9-6- 1990 against the securities detailed in para.6 of the plaint 'and the personal guarantees dated 14- 6-1990 of the defendants Nos.2 to 8. The finance disbursed to the defendant No,1 is claimed to have matured on October 16, 1990 but the defendants failed to liquidate their liability. In defence, the claim is repudiated more or less on technical grounds. Mr. M. Iqbal and Mr. Fazle Ghani Khan are for the plaintiff and defendants.
(vii) Suit No,155 of 1992, Muhammad Bashir v. The Bank of Oman Limited, was instituted on 23-2- 1992. In this suit what is questioned is the purported grant of finance by the defendant-Bank to the plaintiff which, apparently, is the subject-matter of Suit No,923 of 1991, currently pending before the Banking Tribunal. It is, inter alia, urged that the defendant-Bank has manoeuvred to bring the subject-matter of the dispute within the purview of the concept of "finance" so as to invoke the jurisdiction of the Banking Tribunal under the 1984 Ordinance. It is urged that at the time of the relevant transactions there were no goods to be sold or purchased and, therefore, there was no contract of sale so as to give rise to the pristine concept of "finance". Declaration is sought that the relevant documents detailed in the plaint are void and cancellation thereof is claimed. No written statement seems to-have been filed in the suit. Mr. A. Rauf is for the plaintiff and Mr. Habibur Rehman represents the defendant-Bank.
(viii) Suit No,167 of 1992, Abdul Aziz Nawab Khan & Co. v. The Habib Bank Limited.- -This suit, instituted on 2-3-1992, is for rendition of accounts and delivery of goods, the plaintiff being an importer of Iron and Steel Scrap, from time to time and on account, clearing the finance due and correspondingly lifting the imported goods from the godowns of the defendant-Bank, where such were lying pledged. The defendant, allegedly, failed on occasions to issue necessary delivery orders and the plaintiff resultantly suffered. Decree is sought essentially for rendition of accounts.
6. Written statement has been filed by the defendant-Bank in which, principally, it is urged that the suit is barred under the Banking Companies (Recovery of Loans) Ordinance. Mr. Muhammad Salim acts for the plaintiff while Mr. A.R. Akhtar appears for the defendant-Bank."
7. ' Having dilated upon the salient factual features in these cases, the various questions of law may now be specifically set out:
(i) To what extent, if at all, the jurisdiction of this Court has been taken away by or under the Banking Tribunals Ordinance?
(ii) Where in a suit falling within the jurisdiction of this Court or within that of the Banking Tribunal a set-off is claimed or a counter-claim is lodged when an independent suit incorporating such set- off or counter-claim may not have been entertainable whether such set-off or counter-claim can be entertained?
(iii) In cases where successive/counter-suits are filed before this Court and the Banking Tribunal or vice versa and each is competently filed covering the same or similar subject-matter between the same or similar parties, how, if at all, conflicting decisions may be avoided?
(iv) In what manner is a suit to be dealt with which at the time when it was instituted was properly institued in this Court but subsequently, factual impediments giving jurisdiction to this Court having been removed, such suit becomes triable exclusively before the Banking Tribunal?
(i) TO WHAT EXTENT, IF AT ALL, THE JURISDICTION ' As to the ambit of jurisdiction of Banking Tribunals the applicable provisions are these: THE BANKING TRIBUNALS ORDINANCE, 1984
(2) Definitions.---In this Ordinance, unless there is anything repugnant in the subject or context,--
(a) 'banking company' means---... ........ ........ ..... ;
(b) 'Banking Tribunal' means tribunal established under section 4;
(c) 'customer' means a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes a surety and an indemnifier;
(d) 'commencing day' means... .... ........................;
(e) `finance' includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire- purchase, lease rent-sharing, licensing, charge or fee of any kind, purchase and sale of any property, including commodities, patents, designs, trade marks and copy-rights, bills of exchanges, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, Musharika certificate, Modaraba certificate, term finance certificate or any other mode other than an accommodation or facile y based on interestand also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided; and
(f) 'rules' mean... ... ......... ............;
(3) Ordinance not to derogate from other laws. --The provisions of this Ordinance shall be in addition to and, save as otherwise provided in this Ordinance, not in derogation of, any other law for the time being in force.
8. (4)
(5) Powers of Banking Tribunals.--(1) A Banking Tribunal shall--
(a) in the exercise of its civil jurisdiction have in respect of a claim filed by a banking company against a customer in respect of, or arising out of, finance, provided by it, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);
(b) in the exercise of its Criminal Jurisdiction... ...;
(c) exercise and perform such other powers... ... ...;
(d) A banking tribunal shall, in all matters with respect to which procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908);
(i) No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decision as to the existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal: ' Provided that nothing in this subsection shall be deemed to affect---
(a) the right of a banking company to seek any remedy before any Court or otherwise that may be available under the law by which the banking company may have been established or ,.Nder that law as amended from time to time ; or
(b) the power or, jurisdiction of the banking company or any Court such as is referred to in clause (al; or to require the transfer to .a Banking Tribunal of any proceedings pending before the banking company or any such Court immediately before the commencing day."
9. (Under linings added)
10. It will be seen, upon a perusal of sections 5(1)(a) and 5(3) above-quoted, that while the jurisdiction of a Banking Tribunal purports to be exclusive in matters falling within the parameters of its authority what that jurisdiction precisely is has not, as such, been categorically spelled out.
11. However, since the jurisdiction of a Civil Court may be barred either expressly or impliedly, though in either case it should be clearly and manifestly barred, categorisation by nomenclature of the tribunal's jurisdiction may not have been essential for exclusion of the jurisdiction of Civil Courts (section 9, C.P.C.). Objections in this behalf, which are being overruled, would come up for discussion below. For the present, speaking broadly, if intendment of the legislation is clear and words spelling out ouster can readily and conveniently be found in it such would suffice to constitute ouster. Thus, section 5(1)(a) of the Ordinance, reproduced above, implicitly spells out the ambit of the jurisdiction of a Banking Tribunal namely, "a claim filed by a Banking Company against a customer in respect of, or arising out of, finance, provided by it". This, however, has been postulated not directly but with regard to the exercise of powers of a Banking Tribunal by invoking powers similar to those of a Civil Court under the Code of Civil Procedure. Like, as regards procedure of the Tribunal, is the effect of section 5(1)(d); the former provision, apparently, designed to achieve conferment of jurisdiction on a Banking Tribunal. Upon this follows section 5(3) excluding the jurisdiction of all Courts "with respect to any matter to which the jurisdiction of a Banking Tribunal extends ... ..." This method of conferment of jurisdiction, and exclusive at that, is not without legislative precedent. An identical legislative device was used in the Banking Companies (Recovery of Loans) Ordinance, 1979. Relevant postulates of such Ordinance, being useful even otherwise, as an interpretative aid, may here be reproduced: THE BANKING COMPANIES (RECOVERY OF LOANS) ORDINANCE, 1979
(2) Definitions.---In this Ordinance, unless there is anything repugnant in the subject or context,--
(a) 'banking company' means...................... ......
(b) 'borrower' means a person who has obtained a loan from a banking company and includes a surety or an indemnifier;
(c) 'commencing day' means... ... ...............;
(d) "loan" means.
(i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking compnay to a borrower;
(ii) a guarantee, indemnity, letter of credit... ............ ...;
(iii) a benami loan, that is, a loare.. ......... ....;
(iv) any amount due from any borrower... .............. ..;
(v) any loan due from any borrower... ......
(e) 'rules' means .;
(f) 'Special Court' means... ... .......
3. Ordinance not to derogate from other laws.---The provisions of this Ordinance shall he in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.
4. Securing and repayment of loan ......................
5. Omitted.
6. Powers of Special Court. ---(1) 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) in the exercise of its Criminal Jurisdiction; ...... ... ...And
(c) exercise and perform such other powers... ...... ...; No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court and all proceedings, including proceedings following the filing of an arbitration award and-proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending any Court immediately before the commencing day shall stand transferred to the Special Court: ' Provided that nothing in this subsection shall be deemed to affect---
(a) the right of a banking company to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or
(b) the jurisdiction of any Court such as is referred to in clause (a), or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day."
12. (Underlinings added)
13. The Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984 cover an identical subject namely, recoveries in relation to banking business. It is only the nature, implications and incidents of such businesses, which distinguish these statutes and furnish the basis which determines whether one or the other may be attracted for seeking legal relief.
14. Comparison would reveal that the common denominators in these enactments are a banking company, a "borrower" or "customer" as equivalents and a special forum that may be approached in case of disputes. If it is a "loan" based on interest etc., which is sought to be recovered or questioned the 1979 Ordinance would be attracted but if it is "finance" of a non-interest bearing character remedy by a banking company is to be sought under the 1984 statute for the first of which a Special Court is the exclusive forum but for the second relief is obtainable from a Banking Tribunal. "Loan" has a nexus with a "borrower" and "finance" is connected with a "customer", both, as defined respectively in the 1979 and 1984 statutes.
15. ' An examination of the quoted provisions makes it obvious that in relation to a claim filed by a banking company against a "customer" in respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of sections 5(1)(a) and 5(3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction is further confirmed when section 5(3) of the 1984 Legislation makes the tribunal also Judge of "the existence or otherwise of finance", a similar legislative precedent as to "loan" being found in section 6(4) of the Banking Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic tribunal, unless otherwise provided, cannot be Judge of its own jurisdiction. Nonetheless, but conversely, it will still remain for the Civil Courts to see, if called upon to do so, as to how far the statutes have operated to curtail their jurisdiction. Here, we at once find that a Banking tribunal, relevant to the same provisions, as referred has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be relating to "finance" (as defined) provided by the banking company to the "customer". The omission appears to be deliberate because in the same context the equivalent provision in the Banking Companies (Recovery of Loans) Ordinance namely, section 6(1)(a) thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against a "borrower" or by a "borrower" against a banking company pertaining to a "loan" contracted within the terms of such Ordinance. It follows that if a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance" provided to him and covered by the Ordinance, he cannot file such an independent suit before a Banking Tribunal. It is now well-settled that tribunals of exclusive jurisdiction cannot be tribunals of unlimited or infinite jurisdiction and their ambit of operation, even if exclusive, has to be specific and is to be confined strictly within the four corners of the legislation creating them and conferring jurisdiction in relation to them.
16. ' May be taken up now the various objections the learned counsel have raised to urge that the ouster of jurisdiction of Civil Courts is not complete upon the terms of the Ordinance in question. It is a well-recognised principle that where a new right is created by a statute or a new duty or liability is imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement an aggrieved party can seek only such remedy as is provided by that statute and except so far as otherwise provided in the enactment, either expressly or by necessary implication, the jurisdiction to adjudicate upon the right or to enforce the remedy is exclusive in the machinery set up by the statute. Ouster of jurisdiction of Civil Courts in such cases is implicit and no express terms need be explored. At the same time, where a right or duty has existed before the statute has come to occupy the field, the ouster, even when explicit, is conditional and dependent upon the functioning of the forum introduced by the statute: Sultan Ali v. Noor Hussain PLD 1949 Lahore 301, Industrial Development Bank of Pakistan v. Allied Bank, PLD 1986 SC 74. As to the instant legislation, however, neither the term "customer" nor the notion of "finance" nor participation between a banking company and its customer are by any means new. Relevant to banking companies and their customers, as defined, the Ordinance of 1984 merely codifies the law and regulates the procedure for enforcement and that also to the limited extent of remedied provided to banking companies against customers and not vice versa. In spite of purported exclusiveness of jurisdiction conferred on the Banking Tribunals by the Ordinance the ouster of Civil Courts' jurisdiction is, therefore, only conditional upon the functioning of the tribunal. The remedy vesting in Civil Courts is thus not totally barred. To this extent I agree with the contentions of Mr. Fazle Ghani Khan, Mr. Mansoorul Arfin and Mr. Muhammad Shard. However, learned counsel also maintain that once a lis, exclusively within the jurisdiction of such a tribunal, is entertained in a Civil Court while the tribunal is non-functional, it should be taken to its logical conclusion. The Civil Court, it is urged, is not a mere caretaker. I think to uphold this would involve unsettling the settled rules of construction. It seems to me that in matters, covered by the exclusive jurisdiction of a Banking Tribunal, entertained in a Civil Court for want of availability of the statutory machinery, the jurisdiction of the Civil Court is only of a stopgap character and should cease when the requisite forum becomes available for providing redress, all antecedent orders and proceedings in the Civil Court remaining valid and binding: United Bank Limited v. Akbar Agencies Limited PLD 1987 Kar. 81, Habib Bank Ltd. v.
17. Cougdthene Chemical Industries PLD 1987 Lahore 567.
18. ' Another argument of the same and other learned counsel is that where in an action attracting the jurisdiction of a Banking Tribunal non-cognizable matters happen also to come up for adjudication it is only in the Civil Courts that the remedy may be pursued. The principle seems to be that when a suit is cognizable partly in a special statutory jurisdiction and partly in a Civil Court or where a suit is based on a cause of action with respect to which relief can be granted by a Civil Court only and merely a connected relief is available in a special jurisdiction it is the Civil Court alone where the lis lies: Mindai v. Sajid Ali AIR 1930 Oudh 69, Sukhdev v. Basdev AIR 1935 Allahabad 594. It is also a fundamental principle that ouster of jurisdiction of Civil Courts is not readily inferred and in matters where a domestic forum exceeds its jurisdiction or that jurisdiction does not arise at all the overall jurisdiction of Civil Courts extends: Province of East Bengal v. Dewan A. Alim (1957) 9 DLR 26; Chalna Fibre Co. v. Abdul Jabbar PLD 1968 SC 381; National and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106; United Bank Ltd. v. Abdul Rashid 1987 CLC 331. It will, however, remain to be seen whether within the somewhat enlarged compass of the legislation covering all suits by a banking company 'in respect of or arising out of finance' any of the suits in hand do not fall.
19. ' On the question of ouster, it has next been contended that whereas the Banking Companies (Recovery of Loans) Ordinance, 1979, provided for transfer of cases falling within the jurisdiction of the Special Court from the Civil Courts to that Court there is no corresponding provision in the Banking Tribunals Ordinance, 1984. It has also been contended that section 5(3) and in particular the proviso thereof is a departure from what was contemplated in the corresponding provision of section 6(4) of the Banking Companies Ordinance.
20. The two legislations being in pari materia and touching similar subject-matters can he looked at in juxtaposition as an extrinsic interpretative aid. Even so, the result is not the same as it is argued to be. A provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. It is merely qualitative in nature and no more.
21. Nothing, therefore, turns on this distinction.
22. ' As to what is the effect of the two provisos in the equivalent sections of these statutes it is this: Such provisos merely exhibit a slight variation of language without conveying any different meanings. Thus, while the proviso to section 6(4) of the 1979 Ordinance saves the right of a banking company to seek any remedy before any Court that may be available to it under the law by which the banking company may have been established or under that law as amended from time to time, the proviso to section 5(3) of the 1984 Ordinance saves the right of a banking company to seek any remedy before any Court or otherwise that may be available under the law by which the banking company may have been established or under that law as amended from time to time.
23. The expression "or otherwise" in the 1984 statute is thus new. On the language, Mr. Anwar Mansoor maintains that in virtue of the proviso to section 5(3) nothing in that subsection shall be deemed to affect 'the right of a banking company to seek any remedy before any Court... ...' and there one of the contingencies stops the disjunctive 'or' contemplating thereafter another independent postulate. In other words, according to him if a banking company, in its discretion, chooses to approach any Civil Court in preference to a Banking Tribunal it can do so under the 1984 Ordinance though that cannot be done if the matter was covered by the Ordinance, 1979. The argument is untenable. Disjunctive "or" can often be used as a conjunctive just as the conjunctive "and" may be used as a disjunctive. It is in context that each word has to be interpreted.
24. ' It appears to me that, in effect, section 6(4) of the 1979 Ordinance and section 5(3) of the 1984 Ordinance in relation to the provisos in either of them virtually have the same impact. In the context of the 1979 statute the legislature, it would seem, wanted to save the jurisdiction of a Court and of the banking company itself conferred by the law which created any such company. While the position of such Court was clearly stated, the Banking Companies Ordinance of 1979 attempted to create that effect in respect of the banking company itself by using the words "or under that law, as amended from time to time". However, an impression was generated that the quoted words only saved the powers of a Court under a law which created a company as also under the same law, as amended from time to time and that erroneous outcome was fortified when the intendment was not clarified in the clause (b) of such proviso where the jurisdiction of the company under its parent statute was not saved in so many words. It is, to my mind, this apparent lacuna/want of precision which the proviso to section 5(3) of the Banking Tribunals Ordinance seeks to fill or achieve by, in the first place, inserting the words "or otherwise" in clause (a) of the proviSo to section 5(3) and follows up in part (b) thereof by clarifying and protecting the jurisdiction, apart from that of the Court covered by clause (a) of the proviso, also that of the banking company with reference to the law under which the company may have come to be established.
25. Another argument, and this by Mr. B.M. Bangash, advanced in support of the continuation of the jurisdiction of this Court is that section 5(1)(a) of the Banking Tribunals Ordinance envisages jurisdiction of the tribunal only 'in respect of a claim filed by a banking company against a customer'. It is said that such jurisdiction would arise only if and when a banking company, in its discretion and choice, files such a claim before the Banking Tribunal and not otherwise. The argument is again fallacious. In the first place, similar provision in section 6(1)(a) in the Banking Companies Ordinance also provided the ingredient of jurisdiction as being "a claim filed by a banking company against a borrower or by a borrower against a banking company" and the interpretation which is now made does not seem to have prevailed in any judicial forum construing that provision to date, United Bank Ltd. v. Rehana Raza PLD 1983 Karachi 467, Yasmin Nighat v.
26. National Bank of Pakistan PLD 1988 SC 391. Even otherwise, it would appear that if such an interpretation was to prevail under either of these Ordinances, section 6(4) of the 1979 Ordinance and section 5(3) of the 1984 Ordinance would become redundant. Each of these sections operates to exclude the jurisdiction of every other Court by enacting that no such Court "shall have or exercise any C jurisdiction with respect to any matter to which the jurisdiction" of a Special Court or a Banking Tribunal, as the case may be, "extends". Manifestly no Court is either to have or to exercise any such jurisdiction, two obviously distinct situations and for that purpose it is not necessary under these provisions that the jurisdiction of a Special Court or a Banking Tribunal may have actually come to be invoked, but it would suffice merely if that jurisdiction, in a particular matter, merely "extends".
27. ' Questioning the purported ouster, reference is then made to section 3 in the 1984 Ordinance, exactly the same provision occurring in the similar section of the 1979 legislation, enacting that the provisions of the Ordinance are in addition to and not in derogation of other laws; but that is subject the rider "save as otherwise provided" in each Ordinance. The ithplications are obvious: other laws would remain unaffected only if nothing to the contrary is envisioned in the Ordinance.
28. United Bank Ltd. v. Rehana Raza PLD 1983 Kar. 467; H.T.M. Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512, Bank C&C Inter v. Banking Tribunal 1990 MLD 309.
29. ' Mr. B.M.Bangash also attacked the vires of the 1984 promulgation urging that the President, exercising the powers of Parliament, could not legislate on the subject. The learned counsel, referring to Article 142 of the 1973 Constitution, the Federal and Concurrent Legislative Lists and particularly entries 28 and 55 of the former list maintained that the matter not being covered there by legislation in the nature of the 1984 Ordinance could be enacted only by the provincial legislature. By way of legislative history Mr. B.M. Bangash, also attempted to draw support from similar provisions in the Government of India Act, 1935 (as adapted) and the 1956, 1962 and 1972 Constitutions of Pakistan. Now entry 28 in Part I of the Federal Legislative List, inter alia, covers conduct of 'banking business by corporations' and entry 55 in the same List and Part covers 'jurisdiction' of Courts. Both these subjects pursuant to Article 142 of the Constitution are within the Federal legislative competence and the Banking Tribunals Ordinance, 1984, should fall within these subjects. The argument, therefore, fails.
30. Mr. Niaz Ahmad Khan has attacked the vires of the Ordinance with reference to Articles 212 and 212- B (transitory) of the Constitution. He argued that a Banking Tribunal could not be constituted through a law framed under any of these Articles. That is true. But tribunals having Constitutional mandate D have peculiarities of their own and no one claims that status for Banking Tribunals.
31. Besides, tribunals can be constituted also through routine legislations and that is the source of the 1984 enactment.
32. Another objection of the same learned counsel is that the original civil jurisdiction of this Court is governed by the Constitution and cannot be taken away through a sub-Constitutional device. A great deal of case-law as to the jurisdiction of the Court is available but none claims it to be derived, directly, from the Constitution. Having examined the Constitution and particularly Articles 175(2), 192(2)(3) and 199 thereof I am unable to persuade myself to agree with the contention that the original civil jurisdiction of this Court arises E directly from the Constitution. It is a jurisdiction conferred by law and can be curtailed and taken away by law.
33. ' Another contention but of a different character, this time by Mr. A.R. Akhtar, is that, at any event, the jurisdiction of a Civil Court is not attracted in such matters at all because it is the jurisdiction of a Special Court, functioning under the Banking Companies Ordinance of 1979 alone which has now come to vest in the Banking Tribunals, created under the Banking Tribunals Ordinance, 1984. That may be correct. But Mr. A.R. Akhtar says more. He urges that everything falling within the purview of the 1984 statute and not falling within Banking Tribunals' jurisdiction would remain available for a Special Court to adjudicate. If what is contended is correct, then in the event the 1984 Ordinance had emerged on the scene, but without an enforcing machinery of its own, a controversy under that Ordinance would remain covered by the Banking Companies Ordinance. However, it will have to be seen whether that would actually be so. Already reproduced hereinabove are the respective definitions of the words "loan" and "finance", the first of which is the subject-matter of the 1979 statute, the second being likewise the pivot around which the machinery under the 1984 enactment operates. Per definition of word "loan" (section 2(d)) in the concept of a "loan" are also included an "advance" or "any other financial accommodation provided by a banking company to a borrower".
34. These are broad, enough terms. However, the Banking Tribunals Ordinance has created a separate category of "customer" and likewise has introduced an independent subject of accommodation namely, "finance" (section 2(c) and (e)). The matters falling in these clauses are not altogether new and may have been covered but for the definitions of "customer" and "finance" within the terms "borrower" and loan", as contemplated by the Banking Companies Ordinance, 1979 yet, after the promulgation of the Banking Tribunals Ordinance, 1984, such have been accorded the alleviated status of distinct and independent concepts, defined by statute and can no longer be covered by anything meant by a "borrower" and "loan" ibid. In other words, even if "borrower" and "loan" were the genus "customer" and "finance", upon being segragated therefrom, retain no nexus with the same. As said before, a tribunal of exclusive jurisdiction cannot be one, at the same time, of unlimited jurisdiction. It follows that if a special statute has created distinct categories, some facets thereof attracting the jurisdiction established by it, the residue, if any, would not, without an express intention, fall to the lot of another special dispensation. Thus, as observed above, if a "customer" cannot file a suit before a Banking Tribunal he will not regain his pre - 1984 character of a "borrower" so as to file a suit before a Special Court under the 1979 dispensation. It transpires that the 1984 statute has affected a complete severance in this behalf from the past. It has provided part of the enforcing machinery itself. For the rest, recourse becomes available to Civil Courts.
35. Jurisdiction of the Special Court is thus in no case attracted. While saying so I am not unaware of the Peshawar High Court judgment in Habibullah v. Habib Bank Ltd. PLD 1990 Pesh. 17, but with that I, respectfully, do not agree.
(ii) WHERE IN A SUIT FALLING WITHIN JURISDICTION As regards set-off it is Order 8, Rule 6, C.P.C. Which governs the situation. Even though a written statement, incorporating a set-off is to have effect as a plaint in a cross-suit a set-off remains, if satisfying the requirements, a part of the same suit Falling short of requirements, a cross-suit, which would be an independent action can, instead, be preferred. It would, therefore, follow that the jurisdiction to entertain a set-off arises from the jurisdiction to maintain the main suit. If such suit lies a set-off can fall in line. The rule would be applicable in this jurisdiction as well as in the special jurisdiction under the 1984 Ordinance, because of sections 3 and 5(1)(d) in that Ordinance.
36. As to counter-claims or cross-suits the rule appears to be different. Such are maintainable only if an independent suit in a particular jurisdiction is competent. Pendency of an ealier suit even if arising from the same transaction is irrelevant in such matters.
(iii) IN CASES WHERE SUCCESSIVE/COUNTER-SUITS ARE.... ...
37. This question arises where, due to absence of jurisdiction in a single forum cross-suits or counter- claims are preferred in different jurisdictions e.g. In a Civil Court or before a Banking Tribunal or vice versa. In these situations, the normal principle, as enshrined in section 10, C.P.C. Is that the later suit, raising the same or similar issues between the same parties or those claiming under them, irrespective of the Court (in Pakistan) where it is instituted, can be stayed to await the result of the earlier pending suit. However, whether the matter in issue, directly and substantially, in the previously instituted suit is the same as in the subsequent suit, is always a moot question. A common place occurrence can be a suit for recovery by a Banking Company and a cross-suit for accounts etc. By a customer in a different jurisdiction in circumstances already dilated upon. The Supreme Court of Pakistan in Jannana De Malucho Textile Mill Ltd. v. Wiqar Ahmed PLD 1972 SC 34, lays down that each such suit can proceed to trial without being amenable to a stay, the ingredients of section 10, C.P.C., not being attracted. Even so, though the matter remains discretionary, where similarity of issues is involved not only the later suit but even the earlier one can he stayed, as was observed by A.S. Farooqi, J. In Arifa Begum v. Khulque Muhammad Naqvi PLD 1969 Karachi 193. Section 10, C.P.C. Only codifies the principle of res sub judice. The object of the rule is to avoid conflicting findings and to ensure complete justice to the parties. If necessary and found in the interest of justice, one or the other successive suits can be stayed or can he amalgamated or even refused to be stayed as equities may require: Pakistan v. Agro Marketing Corporation 1981 CLC 443 S.M. Akil Fikree v. Muhammad Qamaruzzaman, PLD 1982 Karachi 745; Habib Bank Ltd. v. All Mohtaram Naqvi, PLD 1987 Karachi 102 and Muhammad Aril v. Abdul Qayyum 1991 CLC 442. In successive suits, therefore, before a Civil Court and a Banking Tribunal, each of the forums can invoke section 10, C.P.C. Or failing that section 151, C.P.C. In order to meet the exigencies of a particular situation and to ensure justice and fair play to all.
(iv) IN WHAT MANNER IS A SUIT TO BE DEALT WITH... ...
38. Under this heading, it is clear that when the suits for recovery were instituted in this Court each, in the absence of a Banking Tribunal becoming functional, jurisdiction to entertain then available, the plaint cannot be returned and only a transfer can be made or the suit can be remitted to the proper jurisdiction: Harnam Das v. Salamat Rai, AIR 1952 Pepsu 105: National Bank of Pakistan v.
39. Humayoun Sultan Mufti, 1984 CLC 1401 and United Bank Ltd. v. Akhar Agencies Ltd. PLD 1987 Karachi
81. For this reason Suits Nos. Nil of 1991 (S.No,II), 736 of 1990, 203 of 1991, 432 of 1991 and Suit No,433 of 1991 were ordered to be transferred to the Banking Tribunal through a short order passed on 29th October, 1992.
40. ' However in to No,,203 of 1991 (S. No,IV), it was strenuously argued that the bank had, advisedly, instituted such suit in this jurisdiction because the defendants were liable for fraud which they perpetrated on the plaintiff-Bank. Reliance was placed on National and Grindlays Bank Ltd. v. N.P.
41. Miranda, 1984 CLC 2106 and United Bank Ltd. v. Abdul Rashid, 1987 CLC 331. Those cases are distinguishable because fraud there was practised by non borrowers/non-beneficiaries. In this case because fraud is alleged against a customer and a beneficiary the jurisdiction is essentially that of the Banking Tribunal. Hence the above order.
12. Mr. Raja M. Afsar learned Advocate-General also submitted that on account of delay in following the departmental formalities regarding submitting the petitions, the delay has been caused, therefore, the petitioner, legitimately can pray for condonation of the delay. He made reference to Pakistan Post Office v. Settlement Commissioner 1987 SCMR 119. On the other hand Mr. W.N. Kohli Advocate controverting to the petitioner's counsel stand argued that the Honourable Supreme Court time and again has affirmed that no indulgence can be allowed to the Government functionaries merely because of the fact that proceedings could not be initiated due to lengthy procedure which is to be followed before instituting the proceedings. He made reference to 1981 SCMR 37, 1988 SCMR 1906, Government of Balochistan v. Abdul Nabi and others. He also relied on unreported judgment of Honourable Supreme Court passed in C.P.S.LA. No,50 of 1992, Province of Blochistan through Secretary, Finance Departmental v. Noor Muhammad and others. Learned counsel also relied on decision of this Court in an identical matter in Civil Revision No,150 of 1992. In the case of Pakistan Post Office Honourable Supreme Court while considering the period of filing a writ petition where no statutory period of limitation has been prescribed for approaching the Court law was laid down as under:-- "The learned Deputy Attorney-General pleaded with vehemence that no juridical principle could deprive the Government from placing reliance on legitimate department dealings, case processing, observance of rules and practices and justified delays involved therein, in explaining the two delays. He rightly argued that such condonation is different from exclusion of a time from period of limitation which is not applicable to cases of laches---wherein even the rigours of rules of condonation of delay vis-a-vis a statute of limitation are not attracted.
42. ' After hearing both the learned counsel on point of the delay which is divided into two periods of some months each (it should not have been lumped together as done by the High Court) we are satisfied that neither the period of the delay can be treated as laches nor was it without reasonable explanation. This appeal thus merits to be accepted on this ground alone.
43. ' It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the lattter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court---it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to any other party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act, will be on different harder considerations than those in a case of laches. For example while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."
44. ' Now considering the case in hand at the touchstone of the above observations it is held that the petitioner had not spelled out the circumstances in the application for seeking condonation in filing the revision. The minute scrutiny of the application filed to seek condonation indicates that except mentioning that the orders under challenge have not been passed according to the procedure by the forum below, no other details have been mentioned. Moreover in presence of statutory bar of provisions under section 115, C.P.C., the delay legally cannot be condoned, even for the reasons explained by the Advocate-General hereinabove. It is also important to mention here that in case of Commissioner of Income-tax v. Raees Ahmed Khan 1981 SCMR 37 and Government of Balochistan v. Abdul Khaliq 1988 SCMR 1993, as well as in unreported decision in the case of Province of Balochistan v. Noor Muhammad and others no indulgence has been shown to the Government Agencies in filing the proceedings beyond the period of limitation because of the fact that certain formalities in consulting the various Government quarters are to be fulfilled. Even otherwise on the facts of the instant case it appears that there was no delay as far as the Government of Balochistan or the petitioner himself is concerned because the application was moved for obtaining the certified copy of the appellate order, dated 7th December, 1992, on 20th of February, 1993, which was prepared and delivered on 11th February, 1993 to the petitioner. Whereas sanction has been granted on the name of Advocate-General, Balochistan by the Law Department of Provincial Government to file the petition on 16th March, 1993, much before the expiry of the period of limitation i,e, 90 days, but surprisingly petitions were submitted on 6th May, 1993, without offering plausible reasons for the delay in filing the petitions. It is needless to mention that the Court is not responsible for the negligence of official agencies and if there is slackness and negligence on the part of any of its organ the competent authority is always empowered to take its notice in accordance to law.
13. I also failed to associate myself with the learned Advocate-General that no limitation shall run against the impugned orders which according to him are void in the eye of law. As far as connotation of void is concerned it has been interpreted at various occasion with reference to the facts and circumstances of the case. It is now judicial concensus that such order at the best could be termed as an illegal order which is got to be set aside by filing the proceedings within time.
45. Because if a void order is in the knowledge of a party who is being adversely effected from it. It becomes its legal obligation to challenge the same before the competent forum in accordance with law before the expiry of statutory period of limitation. In this context reference is made to PLD 1975 BJ 29 and PLD 1977 SC 599. Relevant para. From the report of SC for the sake of benefit is reproduced herein below:- "In view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anosmatic Ltd. v. Foreign Compensation Commission and others (1969) 2 AC 147 it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal 'to enter on the enquiry in question'.
46. Now in the instant case, there is no dispute that the learned Civil Judge, who passed the impugned order had seisin of the case therefore, it was for him to decide whether the case was fixed for hearing or not on 1-12-1975. And, even if it is assumed that his decision was totally illegal, the legislature has provided a remedy for challenging such orders, and because the Legislature has provided this remedy, the petitioner had filed its application under Rule 7 of Order IX of the Civil Procedure Code. But as that application was dismissed on account of petitioner's gross negligence, the petitioned had failed to make out any case whatever for invoking the High Court's Revisional Jurisdiction."
14. A perusal of file makes it clear that petitioner had knowledge about the impugned orders as the certified copies were obtained within time. Moreover the sanction from the Government for filing revisions was also obtained before the expiry of the statutory period of limitation. Thus, the petitioner should have filed the proceedings without wasting the time.
15. Now it would be examined that in supervisory jurisdiction whether this Court is empowered to suo motu examine the impugned orders to rectify the illegalities or irregularities if had been committed by the forum below. The section 115, C.P.C., is devided into two parts, firstly which relates to filing the petition by an aggrieved party and second where High Court has been empowered to pass an appropriate order in the case where it thinks fit on calling for the record, that the subordinate, Courts have exercised the jurisdiction not vested by law or have failed to exercise a jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. The object of enacting section 115, C.P.C. Is to provide the supervising power to the High Court, to check illegalities and irregularities and also to see whether the powers are being exercised with jurisdiction or otherwise, by the subordinate Court. Therefore, it is held that despite of the fact that revision filed by an aggrieved party is likely to be failed on any technical point but even then this Court has suo motu jurisdiction under section 115, C.P.C. To examine the validity of the impugned order keeping in view the parameters mentioned hereinabove.
16. During arguments Mr. W.N. Kohli learned Advocate was called upon to explain whether both the Courts below had competently declared the respondents lawful allottee with peaceful possession of the disputed plots because the lease deed in their favour stood cancelled in pursuance of the Deputy Commissioner, order passed under M.L.O. 16/46 as back as on 17th December, 1985. The learned counsel stated that this order was not within the notice and knowledge of the respondents.
47. At this stage Mr. Raja M. Afsar Advocate-General pointed out that the statement of facts being made by the learned counsel of respondents is not correct. Because copy of that order was supplied to each respondent alongwith written statement and the petitioner also produced the same before the lower Court as Exh.D.4. It would be pertinent to mention that the trial Court should have framed a specific issue in view of the preliminary legal objection raised in written statement with reference to Exh. D.4. Additionally the learned trial and appellate Court had not considered this important document while discussing the relevant issues a perusal whereof makes it clear that the petitioner vide above order cancelled the lease deeds which were executed in favour of the respondents namely Abdul Salam, Abdul Karim, Dilbar Khan, Daru Khan and Nasrullah, whose cases are covered by Civil Revisions Nos. 98, 99, 101, 103 and 104 of 1993.
48. ' Mr. Raja M. Afsar, Advocate-General stated that the lease deeds granted in favour of respondents Sardar Muhammad, Sohrab Khan and Fazal Muhammad under Civil Revisions Nos. 100, 102 and 105 have also been cancelled in the same manner. But he failed to produce any document in this behalf to substantiate the stand. Mr. W.N. Kohli, Advocate pointed out that Sardar Muhammad and Malik Fazal Muhammad were the allottees of the plot bearing Khasra No,158/129. In the year of 1980, the then Deputy Commissioner threatened them of illegal dispossession, therefore, they filed two separate suits against petitioner bearing Nos.112, 113/80, seeking the relief of declaration, permanent injunction and damages. The Senior Civil Judge vide order dated 10-5-1982, decreed the suit ex parte in their favour. The learned counsel filed certified copies of judgment during the hearing of the Petition. As far as respondent Sohrab Khan in Petition No,102 of 1993 is concerned he has also not been found in possession of any valid allotment order, lease deed etc. Nor previously he obtains a decree in his favour like the other respondents named above. The Courts below have also not attended his case from this point of view. Accordingly it is held that respondent Sardar Muhammad and Fazal Muhammad cannot be dispossessed from the plot which is in their possession. In view of the ex parte decree, because in these proceedings it is not possible to nullify the effect of the decrees more over Government is always free to avail a legal remedy before the competent Court of law. But as far as the case of respondent Sohrab Khan is concerned that has not been decided by the Court below and appellate Court in accordance to law as he failed to prove on record that he being a lawful allottee is entitled to remain in the possession of the disputed plot.
49. The above discussion leads to believe that the trial Court and Appellate Court passed decrees in favour of respondents in the Petitions Nos. 98, 99, 101, 102,.103, 104 of 1993 without any evidence, as such committed gross illegalities in declaring them to be the lawful allottees within possession of the plot the subject-matters of proceedings.
50. ' For the foregoing reasons the Petitions Nos.98, 99, 101, 102, 103 and 104 of 1993 are allowed.
51. Consequently impugned orders are set aside. The Civil Revisions Nos.100 and 105 of 1993 are dismissed being barred by time and for the reasons that orders dated 10-5-1982 passed by Additional District Judge are operating in favour of respondents. Parties shall bear their own costs.
52. THE END {{PAGE MISS}} ' In the result the office shall act on the short order passed in these suits on the above-referred date, at the same time ensuring that a duplicate record is constituted for consignment in this Court.