MUHAMMAD AFZAL LONE, J.--Leave to appeal was granted to examine that whether an appeal is competent under section 15 of the Code of Civil Procedure (Amendment) Ordinance (Ordinance X of 1980) from an order granting leave to defend the suit, subject to the condition of furnishing security, passed by a learned Single Judge of the Sindh High Court in a suit instituted under the Banking Companies (Recovery of Loans) Ordinance, 1979.
2. The facts of the cases out of which these appeals have arisen are not at variance. Suits for recovery of loans, each exceeding rupees one million, were filed against the appellants in the Sindh High Court, acting as Special Court, under section 2(f) of the Banking Companies (Recovery of Loans) Ordinance, 1979, by different Financial Institutions cited as respondents, in the appeals before us. The appellants applied for grant of leave to defend the suits, and a learned Single Judge of the Sindh High Court, by means of different orders, granted conditional leave to defend the suits, subject to the furnishing of security in each case. The appellants claimed that they were entitled to unconditional leave to defend the suits, and thus aggrieved by the imposition of the condition as to the furnishing of security, they challenged the leave grant orders through appeal under section 15 of Ordinance X of 1980. The High Court, however, took the view that the appeals being against interim orders of the Special Court, were barred by the proviso to section 12(1) of the Ordinance and dismissed the same. This dismissal is under challenge before us. The proviso to subsection (1) of section 12 falling for interpretation in these appeals alongwith subsection (1) for the sake of facility of reference is reproduced below:-- "(1) Arty 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 &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."
' Evidently an appeal from an interlocutory order rendered by a Special Court, which does not dispose of the entire case, is probihited by the proviso. It may be reiterated that upon the phraseology of the proviso, the interlocutory order against which the appeal is not competent, is that "which does not dispose of the entire case". On behalf of the appellants it is vehemently argued that the word "case" appearing in the proviso has a connotation different from the word `suit' used in the Ordinance. Our attention has been invited to sections 6-A and 7, wherein the word 'suit' is used and it is argued that when the legislature in relation to the same subject uses two different words analogous in nature, in different parts of the same Statute, it must be presumed that they are intended to convey different meanings. The learned counsel for the appellants went on to argue that the word 'suit' has been used as understood in the legal parlance, and on the other hand, the term 'case' is employed in the proviso to connote a controversy between the parties to the suit which may merely comprise of a part of the suit. It is now well settled that under section 115 of Code of Civil Procedure, a revision is provided against a 'case decided'. The expression 'case decided' fell for appraisal before this Court in Bashir Ahmad v. Qaiser Ali PLD 1973 SC 507 and was construed as a decision given in respect of any state of facts after judicially considering the same, which need not necessarily dispose of the whole matter in a suit pending before a Court subordinate to the High Court. In the course of his submissions, the learned counsel endeavoured to take an advantage of this enunciation and urged that the expression "dispose of the entire case" could not be equated with the adjudication of the whole suit, and even a decision of a substantial controversy arising out of the suit between the parties, would be included within the ambit thereof. He argued that in the instant case the controversy pertained to an important aspect of the suit, and had a vital effect on the basic right of the appellants to defend the suit unconditionally; and the condition imposed by the learned Single Judge amounted to denial of the very right to defend the suit. According to him the adjudication of the appellants' applications was final and within the meanings of the proviso, was disposal of the entire case. Resultantly, it was contended that the orders of the learned Single Judge, impugned before the Division Bench by no means could be labelled as interlocutory orders, not disposing of the whole case, and thus, were liable to correctness in exercise of appellate powers of the High Court.
3. Ostensibly the argument is attractive, but intrinsically it is replete with a marked infirmity and demonstrative of an inherent contradiction. If the orders of the learned Single Judge are not interlocutory and "dispose of the entire case" the appellants should have preferred appeal under section 12 of the Ordinance and not invoked the appellate powers of the High Court under section 15 of Ordinance X of 1980, which essentially is attracted to an appeal against an interlocutory order.
It is quite obvious that by filing appeals under section 15 the appellants themselves treated the orders in question as of interlocutory nature. But that by itself would not non-suit the appellants.
We are not unaware that as long as the power to hear and decide a matter vests in a Court, mere reference to a wrong provision of law, for invocation of that power is not a bar to the exercise of that power. We are, therefore, inclined to examine the merits of the argument advanced on behalf of the appellants. It is correct that the normal rule of construction of statutes is that when two different words in the same context are used in the same section or in other sections of an enactment, they do not identify the same thing because the legislature does not use two different expressions without intending to convey different meanings. This rule, however, is not of invariable application and cases are not lacking in which departure has been made from this principle. There are instances when the legislature has used two different words, without intending to make any distinction between them. In the words of Black Burn, J. In Hardley v. Perks 1866 L.R. 1 Q.B. 414, sometimes without intending to convey different meanings the draftsman uses different language "to improve the grace and the style and to avoid using the same words, over and over again." In Biharilal Kalacharan v. Emperor AIR 1949 Born. 405 the words "screening any person from legal punishment" used in section 213, Penal Code and "to save....Any person from legal punishment" appearing in sections 217 and 218, Penal Code, were treated to have the same meanings. In State of Bombay v. Heman Santlal Alreja (AIR 1952 Bombay 16) the two expressions "existing law" used in Articles 366(1) and 372 and "law in force" appearing in Article 13 of the Indian Constitution, were considered as synonymous terms though of wider and narrower connotation.
4. For construing the words in a section it is to be kept in mind that the words and the expressions used in an Act take their colour from the context in which they appear. As stated in Black's International Laws (2nd Edn.) p.242 quoted in Crawford's "The Construction of Statutes" at page 352: "When we speak of the "context", it is not meant that different words or clauses in the same sentence must be compared with each other or successive sentences be read together. But in a wider sense, one section of a statute may stand, as context to another, whether it immediately precedes or follows it or is more widely separated from it, provided it bears upon the same general subject-matter." In this connection we find that section 13 is prefixed with the heading "pending cases and appeals". It is, therefore, legitimate to construe the proviso to subsection (1) of section 12 dealing with "appeals" with reference to G section 13, which is re-produced below:-- "Pending cases and appeal.--Notwithstanding anything contained in section 12,--s
(a) any case pending at the commencement of this Ordinance before a High Court in the exercise of its original jurisdiction shall continue to be heard, and shall be decided, by the High Court;
(b) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an order which disposes of the entire case shall continue to be heard, and shall be decided, by the Supreme Court or, as the case may be, the High Court;
(c) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an interlocutory order which does not dispose of the entire case shall stand transferred to the Special Court; and
(d) any appeal on any of the grounds specified in subsection (2) of section 12 which is from an order which disposes of this entire case and which may be pending before a' District Judge at the commencement of this Ordinance shall stand transferred to the High Court."
It may be added that the Banking Companies (Recovery of Loans) Ordinance, 1978, which was repealed and with certain modifications re-enacted, under the Banking Companies (Recovery of Loans) Ordinance, 1979, did not make sufficient provision for transfer of cases of recovery of loans filed by the Banks which at the time of enforcement of Ordinance of 1978 were pending in the Civil Courts. Its section 8(4) provided only transfer of the proceedings pending before any Court, to the Special Court and was silent about the pending appeals. The omission was supplied by section 13 ibid.
5. On comparison of the language of the proviso with that of section 13 we find that the word 'case' is referred to in clause (a) of section 13 and other clauses employ the following relevant expressions:--
(b) ..."an order which disposes of the entire case";
(c) "an interlocutory order, which does not dispose of the entire case" (the same expression is used in the proviso);
(d) "an order which disposes of the entire case".
It is clear to us that in clause (a) the word 'case' means the 'suit' pending in the High Court in exercise of its original ,civil jurisdiction, before the promulgation of the Ordinance, which under this clause had to be continued to be heard and decided by the High Court. We have no doubt that the word 'case' appearing in this clause signifies 'suit' and not some controversial matter arising out of or forming part of the suit. Section 3 expressly lays down that the provisions of the Ordinance are in addition to and not in derogation of any law for the time being in force. Section 6 refers to the powers of the Special Court, and provides that in exercise of its civil jurisdiction under the Ordinance a Special Court has all the powers vesting in a Civil Court under the Code of Civil Procedure. The combined reading of these two sections demonstrates that such provisions of the Code of Civil Procedure which are not in conflict with the Ordinance can well be enforced by the Special Court. The concept that there are certain orders which dispose of the entire suit and there is another category of orders which are interlocutory in character and do not dispose of the entire suit, may it be called a case, is not alien to the Code of Civil Procedure. As example of orders which dispose of the entire case, would include order rejecting the plaint on any of the grounds mentioned in Order VII, Rule 11 C.P.C., order pronouncing judgment under Order VIII, Rule 10 when a party from whom written statement is required, fails to present the same within the time fixed by the Court; pronouncement of judgment under Order X, Rule 11 on the failure of a party to appear in person in the Court without lawful cause, when directed by the Court to do so; dismissal of suit for want of prosecution and striking out of the defence of the defendant under Order XI, Rule 21 for non-compliance with the orders of the Court for personal appearance; pronouncement of judgment under Order XVI, Rule 20 as consequence of refusal of a party to give evidence when called on by the Court. For the purposes of the Ordinance, an interlobutory order may be described as the order which is incidental to or a step in aid of the final decision of the suit. In this category would fall the orders such as an order under Order I, Rule 10, impleading or refusing to implead a party as plaintiff or defendant as the case may be, allowing or refusing to allow an application for amendment of the pleadings under Order VI, Rule 17, C.P.C.; an order under Order XXVI, Rule 9, C.P.C.
Regarding issuing or refusing to issue a commission also follows the same wake. Such instances can be multiplied. This category of orders is hit by the proviso and is not appealable. Clauses "b" and "d" ibid refer to a class of the orders falling in the first category. On the other hand clause "d" and the proviso to section 12(1) would embrace an order of the type of the second category. As a result of this analysis we are firmly of the view that the word 'case' has been used in the proviso in the sense of a suit and not to convey the meanings canvassed by the learned L counsel on the analogy of section 115, C.P.C. The orders of the learned Single Judge were thus not appealable.
6. Under the Ordinance the suits for recovery of amount in excess of Rs,10,00,000 (One Million Rupees) are instituted in the High Court, which under section 2(f)(ii) is designed as "Special Court".
The other argument of the appellants is that while designating the High Court as the Special Court, it has been described as "the High Court in exercise of Original Civil Jurisdiction". It is contended that where a remedy is provided to a designated forum, all the rules of that forum, unless expressly excluded, will determine the other privileges like any further appeal, review, revision etc. In this respect reference was made to the concept of appeal under clause 10 of the Letters Patent since repealed by section 3 of the Law Reforms Ordinance, 1972, to urge that it was not an independent appeal but merely in the nature of review of the orders of the Single Judge by a larger Bench of the same Court aimed at final determination of the matter by the High Court. According to the learned counsel, it is immaterial that formerly the remedy lay under the Letters Patent and now it is provided under a statute because the language by which the clause 10 of the Letters Patent provided for an appeal from an order passed by a Single Judge of the High Court to a Bench of two Judges of the same Court is similar to that of section 15 of Ordinance X of 1980, if not identical. Thus, in his submission, there is no rational basis for not applying the same concept of the review nature of the jurisdiction, to appeals filed under section 15. The important factor in either case as urged by him is that the appeal lies to the same Court and to Judges of the same status. The appellants' contention in nutshell is that as the law relating to the forum i,e, the High Court permits an appeal against an interlocutory order, the appeals brought by them are competent. In support of these submissions the learned counsel heavily relied on M/s. S.M. Rehman & Co. v. Motabar and others PLD 1981 SC 282, Hudaybia Taxtile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC 512 and the Chief Administrator, Auqaf v. Abdul Nabi PLD 1989 SC 299.
7. The main edifice of the arguments advanced on behalf of the appellants is that the order granting leave to defend the suit was passed by the High Court, though as a Special Court, yet in the exercise of its original civil jurisdiction and having acted in that capacity, no finality was attached to the order of the learned Single Judge, and thus, a further appeal under section 15 ibid against his interlocutory order, which in character is analogous to an appeal under clause 10 of the Letters Patent of the Lahore High Court, is not excluded. This would call for determination of the issue that with reference to Sindh High Court what is really meant by the expression "in the exercise of original jurisdiction". It may be observed that under paragrpah 3 of the High Court of West Pakistan (Establishment) Order, 1955, the High Court of Judicature for the Province of West Pakistan was established, having its seat at Lahore and Benches at Karachi, Peshawar and Circuit Courts at other places. Paragraph 3 further provided that the High Court was to have such original appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan, as the High Court of Judicature at Lahore had immediately before the commencement of the Order, in relation to which it exercised appellate jurisdiction. Under paragraph 9 of the Order; the jurisdiction, powers and authority conferred on the High Court of Judicature at Lahore by the Letters Patent dated 21st March, 1919, whereby it was constituted, were conferred on the High Court of West Pakistan, subject to such modifications or alterations, as made under the Order or any other law for the time being in force. The Order provided that the High Court of Judicature at Lahore, the Chief Court of Sindh and Judicial Commissioner's Courts of N.-W.F.P., Balochistan and other Courts functioning as High Court, such as High Court of Bahawalpur and Khairpur ceased to exist.
8. Under para. 5 of the said Order the Bench of the West Pakistan High Court at Karachi was conferred the same original jurisdiction for the Civil District of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable by the Chief Court of Sindh before the commencement of the Order by virtue o' section 8 of the Sindh Courts Act, 1926, which ordained:-- "8. The Chief Court shall be highest Civil Court. Of appeal and revision and the highest Court of criminal appeal and revision for Sindh an the principal Civil Court of original jurisdiction for the civil district o Karachi and shall be Court of Session and shall exercise the power and perform the duties of a Sessions Judge in the Sessions Division of Karachi."
' Under paragraph 12 of the Order the High Court Judges Order, 1937 was applied to the West Pakistan High Court, but the definition of Chartered High Court was omitted. This position continued till the dismemberment of One-Unit. After the commencement of the Province of West Pakistan Dissolution Order, 1970, the four provinces, namely, Punjab, Balochistan, N.-W.F.P. And Sindh and centrally administered tribal areas were revived. Upon paragraph 14 of the Order, a High Court was established for each Province but Provincial Governments of two or more Provinces could agree to have a common High Court. Accordingly, under paragraph 3 of the High Courts (Establishment) Order, 1970, a High Court for the Provinces of Balochistan and Sindh called the Sindh and Balochistan High Court with its principal seat at Karachi was established.
Subsequently, on the promulgation of the Balochistan and Sindh (High Courts) Order, 1976, two separate High Courts were constituted, one each for the Province of Balochistan and the Province of Sind. Paragraph 3'(2) of the High Courts (Establishment) Order, 1970 provides:- "Each new High Court shall be a Court of record and shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories for which it is established as the High Court of West Pakistan, immediately before the appointed day, had in respect of the territories in relation to which it exercised appellate jurisdiction."
' As a result of these legal instruments, the Sindh High Court came to be vested with the jurisdiction, powers and authority enjoyed by the West Pakistan High Court under the Letters Patent of the High Court of Judicature at Lahore; and in addition to that so far as civil side is concerned, the original civil jurisdiction for the Civil District of Karachi as it existed wider section 8 of the Sindh Courts Act, 1926, and exercised by the Karachi Bench of the West Pakistan High Court also stood conferred on it.
9. It may be pointed out that some of the High Courts in the undivided India were vested with original civil jurisdiction, but no such jurisdiction was conferred on the High Court of Judicature at Lahore. For instance under clause 11 of the Letters Patent for the High Court of Calcutta dated 28th December 1865, it exercised ordinary civil jurisdiction within such local limits as from time to time declared and prescribed by any law and under clause 12 in exercise of its ordinary original civil jurisdiction the Court was empowered to receive suits for land or other immovable property situated in, and other cases if the cause of action arose within the local limits of the ordinary original jurisdiction of the said High Court. The Letters Patent of the High Courts of Madras and Bombay in all material respects were almost in same terms as those of Letters Patent for the High Court of Calcutta. As regards the Lahore High Court the only civil jurisdiction conferred on it was under clause 9 of the Letters Patent described therein as extraordinary original civil jurisdiction which empowers it to remove, try and determine as a Court of "extraordinary original jurisdiction"; any suit falling within the jurisdiction of any Court subject to its superintendence. Reference in this behalf may also be made to section 24 of the Civil Procedure Code which confers upon the District Court and the High Court the general power to transfer, withdraw, either suo motu or on application of a party, a suit pending in a subordinate Court and try the same. Apart from this the Lahore High Court under the Letters Patent had testamentary, intestate jurisdiction. It also exercised matrimonial jurisdiction over the persons professing the Christian religion. The examination of these provisions clearly shows that the Lahore High Court does not possess any original civil jurisdiction in the nature of the jurisdiction of principal Civil Court of original jurisdiction, called District Court, as exercised by the Sindh High Court for the civil district of. Karachi under section 8 of the Sind Courts Act, 1926. Even the High Court of N.-W.F.P. And the High Court of Balochistan do not enjoy jurisdiction of the principal Civil Court of original jurisdiction, to entertain and try civil suits directly as is the case with the Sindh High Court in relation to Civil District of Karachi. It also does not possess any such jurisdiction over rest of the area of Sindh Province, falling within its territorial jurisdiction. In Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. (P.L.D. 1961 (W.P.) Karachi 565 (574) the real character of its original civil jurisdiction has been described by Wahiduddin, J. As under:-- "It is therefore perfectly clear that this jurisdiction is of a special nature and is not the ordinary civil jurisdiction of the West Pakistan High Court, otherwise there was no necessity of saying that the Karachi Bench of the High Court of West Pakistan shall have the same original civil jurisdiction for the Civil District of Karachi as was exercisable by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926. It will be further observed that original civil jurisdiction in respect of civil suit in Karachi was not conferred on the High Court as a Whole as in the case of Calcutta, Madras and Bombay under their Letters Patent, but only to the Bench at Karachi. The nature of this jurisdiction is further clarified under para. 7 of the amendments in Part A of the Schedule of President's Order No,2 of 1956. In sub-clause (4) of para 7, which replaces the original section 45 of the Sindh Courts Act, 1926, it is provided that all decrees and orders in suits and proceedings wherein the subject-matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22, prescribe, passed before the appointed day, by the Bench of the High Court of West Pakistan at Karachi functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction shall be deemed for the purpose of execution to have been passed by the District Court of Karachi.
It is quite plain that the Karachi Bench of West Pakistan High Court is functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction in the Civil District of Karachi and not ordinary civil jurisdiction of the High Court as understood under the Letters Patent of some High Courts in this sub-continent.
10. The precedents cited at the bar on behalf of the appellants remain to be examined. In the case of M/s. S.M. Rehman & Co. The workmen's claim, under the Workmen's Compensation Act, was accepted by the Authority by its order dated 31-5-1965, under section 15 of the Act. The employer challenged this order through an appeal under section 17 of the Payment of Wages Act, 1936, which was allowed by a learned District Judge. Aggrieved by this order the workmen invoked the revisional jurisdiction of the High Court under section 115, Code of Civil Procedure. The point which fell for determination before this Court was that the order of the Authority under section 15 was final only subject to the appellate jurisdiction of the District Judge under section 17(c), who while hearing an appeal could not be regarded as a Court subordinate to the High Court. Accordingly, the maintainability of the revision was called in question. This Court took the view that:-- "The term 'District Court' has not been defined in the Payment of Wages Act, and, accordingly, it has to be given its ordinary connotation, as indicated in the General Clauses Act and in the Civil Procedure Code, according to which it is a Court subordinate to the High Court. The argument that there is a finality attaching to the order of the authority under section 15 of the Act subject only to the appellate jurisdiction of the District Court under section 17(e) of the Act, does not advance the case any further, as such finality only means that the order of the Authority can be challenged only by way of appeal to the District Court and not otherwise; but there is no such limitation in respect of the appellate order made by the District Court as ordinarily constituted, in which capacity it is subordinate to the High Court."
' It is important to note that 6.e term 'District Judge' has been used in the Payment of Wages Act as a Court already established in contemplation of Code of Civil Procedure and not as a persona designata. On the other hand under section 2(f) of the Banking Companies (Recovery of Loans)
Ordinance, 1979, for the purposes thereof the High Court has specifically been categorized as a Special Court. This judgment is, therefore, of no avail to the appellants.
11. Hudaybia Textile Mills' case relates to confirmation of Court's sale made under the orders of a learned Single Judge of the Lahore High Court acting as a Special Court under the Ordinance. A Court's sale can be challenged on the application of the person having interest in the property either under Order XXI, Rule 89 or Order XXI, Rule 90. Under the former provision payment in the Court within the period of limitation of 5 per cent. Of the purchase money and the amount specified in the proclamation of sale, less any amount which may have been received by the decree-holder, is the condition precedent for its applicability. The latter provision is attracted when the sale is sought to be set aside on account of material irregularity or fraud in publishing or conducting the sale. The judgment-debtor did not invoke Order XXI, Rule 90, as any material irregularity or fraud in the publication or conducting of the sale, was not even alleged in the application and assailed the sale under Order XXI, Rule 89, but without making any deposit in the Court. However, instead of pursuing this application he compromised the matter with the decree- holder/bank and paid the decretal amount through the executing Court. The Court, thereafter, directed that the amount deposited by the auction-purchaser in the Court alongwith 5 per cent. Of the amount would be refunded to him. The auction-purchaser raised an objection to this course of action on the plea that mandatory requirements of deposit in terms of Order XXI, Rule 89, were not complied with, but it was turned down by the executing Court. However, this objection was upheld by a Division Bench and his appeal accepted. On further appeal before this Court on behalf of the judgment-debtor it was contended that execution of the decree passed by the Special Court is governed by section 8(3) of the Ordinance, which does not contemplate technicalities of Order XXI, Rule 89. This Court, however, on examination of some case-law, and relevant provisions of the Ordinance, took the view that under section 6(1)(a) read with section 3 of the Ordinance the executing Court followed the procedure laid down in Order XXI, Rule 89. In the course of the judgment certain observations have been made which are relied upon by the learned counsel for the appellants. The portion of the judgment in which these observations appear is reproduced below:-- "As the High Court is an already established Court and is not the creature of the special enactment the procedure ordinarily governing the trial of suits would regulate the proceedings, except as already stated, to the extent contrary provision is made in the special enactment conferring jurisdiction. This principle has been approved in the case of Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1. In this case it was held that the C.P.C. Governs civil proceedings in the High Court and the dictum was stated as under:-- `When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right to appeal from its decisions likewise attaches."
' It is important to note the words 'without more' which clearly imply that the ordinary incidents of the procedure of such an established Court would apply provided the special enactment which creates the jurisdiction does not provide anything by way of procedure for the trial of the question referred to such established Court, in which case the special procedural provisions will override the ordinary procedure even of such established Court."
In our opinion, in considering the value of the principles of a case, as an authority, emphasis has to be placed on the material facts, before the Court, for such facts may serve as a guide for the reasons for pronouncement of law by the Judge or the statement of the rule of law followed by him. In this connection we refer to the remarks of Lord Halsbury in 1901 AC 495 (at p.506) in Quinn v.
Leathern: "that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found."
' We may observe that somewhat spacious observations made in the aforesaid para. Of the judgment and those appearing in Bashir Hussain's case (PLD 1970 SC 1) cited therein, in which the High. Court's power to review its orders under section 114, and Order XLVII, Rule 1, C.P.C. In exercise of its writ jurisdiction, have been dealt with, are circumscribed by the facts of those cases and cannot be applied to the cases in hand, arising out of the proceedings under the Banking Companies (Recovery of Loans) Ordinance, 1979, which is a special statute and creates a new jurisdiction, provides remedy by way of appeal against the orders of the Special Court and also lays down a procedure governing such appeal. The judgment in Hudaybia Textile Mills' case therefore cannot be of any help to the appellants.
12. As regards Chief Administrator AuqaPs case under section 7 of the West Pakistan Waqf Properties Ordinance, 1959, a petition claiming an interest in the Waqf property was heard by a District Court envisaged by section 2(4), Code of Civil Procedure and against his order under section 8 an appeal was provided to the High Court of West Pakistan. The decision in appeal under section 10 was final. An argument was raised that the Single Judge's order being final, Letters Patent appeal was not competent. This argument was repelled on the basis of general concept of the Letters Patent appeal; that the decision of the High Court under different provisions appearing in several statutes really refers to the final decision rendered by the Letters Patent Bench. Thus, this precedent is also distinguishable as unlike the Waqf Properties Ordinance; in the Banking Companies (Reovery of Loans) Ordinance, 1979, the High Court is defined as a Special Court, and it is well-settled that when an expression is defined in an enactment, unless there is anything repugnant in the context, it is to be given the same meaning as attributed to it in the definition clause. So far as section 12 is concerned, there is nothing therein to construe the High Court as different from the Special Court defined in section 2(f) of the Ordinance. The basis of the decision in the cases relied upon by the appellants are altogether different. These, therefore, cannot be treated as an authority for the right of appeal professed by the appellants.
13. The true character of the jurisdiction of the Sindh High Court has already been analysed. If the argument of the appellants' learned counsel is accepted, the result would be that only the interlocutory orders passed by a learned Single Judge of the Sindh High Court, in the suits under the Banking Companies (Recovery of Loans) Ordinance, 1979, in relation to Civil District of Karachi.
Would be appealable. But, no appeal would lie against such orders made by the other High Courts and even by the Sindh High Court in respect of the territory other than the Civil District of Karachi; by the Additional District Judges notified. By the Federal Government as Special Court, and by the District Judges all over the country. Such a situation is bound to impinge the uniformity in the application of law. The law-maker could not have intended to provide a right of appeal against interlocutory orders only relating to Civil District of Karachi and in similar matters deny such right concerning rest of the country. It seems to us that by the expression "original civil jurisdiction" as used in the Ordinance, is meant the trial of the suit on the original side of the High Court. The term has not been used in the technical sense as understood with reference to the Letters Patent of some of the High Courts in the Sub-Continent, but has been employed in contradistinction to the appellate and revisional jurisdiction exercised by the High Court. The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a Special Court as defined in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others. The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the legislature. By virtue of subsection (4) of section 6 in all matters to which under the Ordinance, the jurisdiction of the Special Court extends, no Court other than the Special Court can have jurisdiction to deal therewith. Furthermore, section 11 attaches finality to the orders and categorically lays down that subject to provision for appeal under section 12, no Court or other authority shall call in question or permit to be called in question any order or judgment of the Special Court. Evidently, the legislature in its anxiety to protect the orders of Special Court, has gone to the extent of ordaining that no Authority other than the appellate forum specified in section 12, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions is that judgment and orders passed by a Special Court cannot be assailed before any forum except in accordance with the provisions of section 12.
14. The case may also be examined from another angle. The object of enacting the Banking Companies (Recovery of Loans) Ordinance, 1979, is to provide speedy measures for recovery of outstanding loans of the Banking Q Companies as their recovery suits remained pending in the Civil Courts for years together. If the orders in the nature of interlocutory orders are brought under challenge before the High Court, the object for which the enactment was made would be frustrated. The appellate power conferred on the High Court is only to the extent of entertaining appeal against the final order and judgment of the Special Court and that too subject to the condition precedent prescribed by section 12 that the appellant deposits in the High Court an amount equivalent to the decretal amount or with the leave of the Court furnishes security equal in value to such amount. In Muhammad Ayu6 Butt v. Allied Bank Ltd., Peshawar and others (PLD 1981 SC 359) this Court examined the issue as to the maintainability or otherwise of a revision under section 115, C.P.C., against an interlocutory order; considered in some depth the scheme the object and the relevant provisions of the Ordinance and came to the conclusion:-- "It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decision of the Special Court should be open to appeal before the High Court. This is evident from subsection (1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court. Thus, on consideration of the provisions of the Ordinance itself, the revisional jurisdiction of the High Court in regard to such orders is excluded."
' These observations are a complete answer to the right of appeal canvassed by the learned counsel for the appellants, against interlocutory orders of the Special Court.
' For the foregoing reasons, we are satisfied that the High Court justifiably dismissed the appeals.
These appeals are, therefore, dismissed. As there is no reported judgment of this Court on the interpretation of section 12 ibid, the parties are left to bear their own costs.
…and 73 more citing cases