1. ' The plaintiff-Bank had filed this suit under the Banking Companies (Recovery of Loans) Ordinance, 1979, for recovery of Rs,7,097,535 alleged to be due to it on account of credit facilities granted by it to them. The credit facilities were granted under the Islamic system of banking and it is common ground between the parties that the suit should have been filed before the Banking Tribunal established under the Banking Tribunals Ordinance, 1984, instead of in this Court. It is an admitted position that on the 29th September, 1987, when this suit was filed, the Banking Tribunal was functioning and had exclusive jurisdiction to try the suit.
2. ' Since the suit was filed in this Court as a Special Court, the defendants filed an application for leave to appear and defend the suit. During the hearing of that application on the 11th April, 1991, I asked Mr. Sajid Zahid whether in view of the fact that the loan had been granted on the bask of mark-up and not of interest this Court had jurisdiction and the hearing of the application was, at his request, adjourned to enable him to answer the question. On the 14th May, 1991, and the 20th May, 1991, Mr. Sajid Zahid again obtained adjournments to obtain instructions from the plaintiff and to prepare his arguments. Finally, on the 5th September, 1991, he stated, that the Tribunal had started functioning since the Ist August, 1991, and requested that the plaint be returned to the plaintiff for filing before the Tribunal. The plaint was, therefore, ordered to be returned.
3. Subsequently, the plaintiff moved the present application (C.M.A. 4213 of 1991) under section 151, C.P.C. praying that the order dated the 5th September, 1991, be amended and that the suit be transferred to the Banking Tribunal. That application was dismissed by short order dated the 12th February, 1992, and the following are the reasons for that order.
4. ' Mr. Sajid Zahid submitted that the only point for determination was whether an the reconstitution of the Tribunal on the 1st August, 1991, the suit was to be transferred to it or the plaint was to be returned to the plaintiff for filing before the Tribunal. He submitted that although on the 29th September, 1987, when this suit was filed, this Court had no jurisdiction, it acquired jurisdiction, subsequently, on or about the 26th May, 1989, when the Tribunal stopped functioning; and that, consequently the suit was validly pending in this. Court and, that being so, the provisions of Order 7, Rule 10, C.P.C. were not applicable and the plaint could not be returned. To support the proposition, he relied on Twaha v. m.v. "Asian Queen" PLD 1982 Kar. 749 and United Bank Ltd. v. Akbar Agencies Ltd. PLD 1987 Kar.
81. There is no cavil with the principle, as field in PLD 1982 Kar. 749, that if a Court entertains a suit without jurisdiction but subsequently acquires jurisdiction, the suit would not fail; but this Court, acting as a Special Court under the Banking Companies (Recovery of Loans) Ordinance, 1979, never acquired jurisdiction to try the suit at any time. Mr. Zahid submitted that the title''of the plaint showing that the suit was filed under the Ordinance, was wrong and submitted that it was in fact a suit under section 9, C.P.C. and that this Court, as such, acquired jurisdiction when the Tribunal stopped functioning. The submission is, however, not supported by the record. Not only was the suit filed expressly under the provisions of the Ordinance but even the procedure followed was that prescribed by the Ordinance. Upon admission of the plaint, summons was issued under Rule 8 of the Banking Companies (Recovery of Loans) Rules and the defendants filed an application for leave to appear and defend the suit as well as an application under section 5 of the Limitation Act for condonation of delay. It is clear that if the mention of the Ordinance in the title of the plaint had merely been a mistake and the suit had been treated as one under section 9 of the Code of Civil Procedure, ordinary procedure as prescribed by C.P.C., instead of the special procedure, as prescribed by the Ordinance, would have been followed. In PLD 1987 Karachi 81, it was specifically observed that while High Court assumed the jurisdiction under section 9, C.P.C. because the Tribunal was not functioning, the procedure that was to be followed was the procedure prescribed by C.P.C. and not that prescribed by the Banking Tribunals Ordinance, 1984. It is, therefore, clear that the suit was entertained and tried by the High Court as a Special Court. Since the High Court as a Special Court never had or acquired the jurisdiction to try the suit, the suit was not duly or validly pending. It follows that such a suit could not be transferred and the only course available was to return the plaint; and the plaint could be returned "at any stage" as provided by Order 7, Rule 10, C.P.C.
5. ' In this view of the matter, it is not necessary to consider the question whether, notwithstanding the provisions of subsections (1)(a) and (3) of section 5 of the Banking Tribunals Ordinance, 1984, this Court could, if the Tribunal established under the Ordinance was not functioning at the relevant time, assume jurisdiction under section 9 of the Code of Civil Procedure till such time as the Tribunul starts functioning. It may, however, be observed that there appears to be no warrant either in the decision in PLD 1972 Kar. 366 or in the language of section 9, C.P.C. to justify assumption of jurisdiction for a temporary period. Assuming, however, for the sake of argument, that the suit was validly pending before this Court, Mr. Sajid Zahid was unable to cite any principle or provision of law, except section 24 of the Civil Procedure Code, under which the suit could be transferred to the Banking Tribunal. Section 24 provides, inter alia, that the High Court may "transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try and dispose of the same " Even if the suit is considered to have been validly pending before this Court and the Banking Tribunal is deemed to be a "Court", it cannot be said that the Tribunal is Court "subordinate to this Court.----See .Muhammad Ayub Butt v. Allied Bank Ltd. PLD 1981 SC 359 The provisions of section 24 are, therefore, not attracted.
6. ' Mr.Khalid Anwar submitted that the application, though, expressed to be under section 151, C.P.C., was, in effect, an application for review of the order dated the 5th September, 1991, and was, therefore, not maintainable. Mr. Sajid Zahid, on the other hand, submitted that what he was seeking was not review but amendment of the order in exercise of inherent power of the Court. In support of his submission that this Court has inherent power to amend the order, Mr. Sajid Zahid relied on Mst.
7. Allah Rakhi v. Mst. Raj Bibi PLD 1957 Lah. 70, Bashirullah Munshi v. Abdul Bari Bepari PLD 1969 Dacca 950, Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 and Muhammad Shibli Khan v. I.U. Khan PLD 1976 Lah.
8. 269.
9. ' In the case of Mst. Allah Rakhi v. Mst. Raj Bibi, it was held that an order closing a party's evidence was not an order which determined the rights of the parties nor an order finally deciding a proceeding and, therefore, although it was not within the purview of Order 47, C.P.C., it could be recalled in exercise of Court's inherent power to alter, amend or review orders relating to procedural matters on grounds similar to those in Order 47, Rule 1, C.P.C., except the technicalities of that provision. The same rule was followed in the case of Bashirullah Munshi v. Abdul Bari Bepari, where it was held that a Court had inherent power to recall an order whereby the proceedings in the suit were stayed pending the disposal of an appeal before the Board of Revenue. In the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum, it was held by a majority of the learned Judges that a Rent Controller had inherent power to set aside an order for ex parte proceedings against the tenant where the tenant shows that he was precluded from attending on the relevant date of hearing on account of a sufficient cause. K.E. Chauhan, J. who delivered the majority judgment, observed as follows:--- "(b) A distinction is to be maintained (a) in filing an application for claiming a rehearing of a case, ex parte decided on the one hand, and (b) filing an application for review of setting aside the ex parte judgment itself on the other hand. The points of distinction are that (i) in the former type of proceedings the defendant-petitioner claims a re hearing on the ground (to put it broadly) that he was prevented by some sufficient cause from appearing on the relevant date of hearing and taking part in the proceedings of the case, while in the latter types of cases, he challenges the ex parte decree itself on its own merits including the errors of procedure in the trial of the case. (ii) In the former case, the merits of the ex parte decision or judgment are not to be taken into consideration, see Firm of Ghumanmal Kliatoomal v. Secretary of State for India and another AIR 1926 Sindh 249. (iii) The latter types of cases partake some of the character of a review while the applications for claiming a rehearing on the ground of earlier absence due to some sufficient cause are not in the nature of a review." ' and the effect of the distinction was stated to be---- "........... that whereas a review may not be available unless so provided for in statute, an application to claim a rehearing (as is being desired here) being in the nature of a prayer to claim natural justice will always be available."
10. ' In the case of Muhammad Shibli Khan v. I.U. Khan, it was held that Board of Revenue had inherent power to correct a clerical or typographical error in its judgment. None of the above decisions are of any assistance to the plaintiff because the order returning the plaint is not a matter of mere procedure.
11. ' Mr. Khalid Anwar submitted that in any case after the passing of the order, dated the 5th September, 1991, this Court is functus officio and has no jurisdiction to recall that order. He relied on the cases of Bashir Begum v. Mian Abdul Rehman PLD 1963 Lah. 408, Nisar Ahmad v. Presiding Officer, Punjab Labour Court PLD 1976 Lah. 1162 and in Re: V.G.M. Holdings Ltd. (1941) A.E.R.
417. In Bashir Begum's case, review of judgment was sought on the ground of subsequent compromise between the parties and it was held that the application was outside the scope of Order 47, Rule 1, C.P.C. and that inherent power was not exercisable after the case had been disposed of. In Nisar Ahmed's case, it was observed as follows:--- " where a law provides for writing, announcing and signing a judgment, all that must be done in that way, in order to give validity to the judgment....Therc are separate provisions for altering or amending judgment after it has been signed. These provisions make it absolutely clear that after a judgment has been announced and signed, a Judge cannot alter or review it except in accordance with law. The Court is then functus officio as the previous proceedings stand concluded."
12. ' In the case of Re: V.G.M. Holdings Ltd. the respondent was ordered to pay the applicant a sum of Pound 15,980 but the execution of the order was stayed on the condition of the respondent giving security in the sum of Pound 5,000 within four weeks. The respondent then applied for an order that if Pound 3,000 is paid into Court within seven days, there shall be a stay of execution. It was held that when a Judge has made an order such as the one in that case, the only remedy for the respondent was to go to the Court of appeal and that the Court passing the order had no jurisdiction to make the order asked for by the respondent.
13. ' It is clear that the effect of the order, dated the 5th September, 1991, was that the proceedings before this Court concluded and came to an end. It is, therefore, obvious that the only remedy, if any, of the plaintiff was to file an appeal therefrom and that this Court had become functus officio.
14. The application of the plaintiff, therefore, could not be granted.