1. ' WAJIHUDDIN AHMED, J.---In all these petitions are assailed judgments of the Banking Tribunal, recorded under the Banking Tribunals Ordinance, 1984. Common pleas in the petitions are that the right of appeal conferred on an aggrieved person by section 9 of such Ordinance is illusory inasmuch as by way of a condition precedent for an appeal under that section, the defendant concerned has to "deposit with the Banking Tribunal the amount claimed in the suit or the decretal amount". For such reason, there, purportedly, being "no other adequate remedy" provided by law, .The petitioners, in the subject petitions, have taken recourse AO the Constitutional jurisdiction of this Court for achieving the same result that is to say recall of the impugned judgments. Here it has been pointed out to us that there are conflicts of opinion between two Division Benches of the Court as to whether the Constitutional jurisdiction is attracted in the circumstances. Reference in the .Context is made to M/s. Majeed Enterprise v. United Bank Ltd. 1994 CLC 2292, and M/s. U.K.
2. Garments v. First Women Bank Ltd. (1st Appeal No, 45/92), on the one hand, implying that the Constitutional remedy may be attracted, and Khurshid Alam v. United Bank Ltd., PLD 1995 Karachi 409; and Zarat International (Pvt.) Ltd. v. Banking Tribunal, 1995 MLD 1546, on the other, opinion that relief could not be extended in the exercise of Constitutional jurisdiction in matters, where the remedy of an appeal under section 9 aforesaid was available.
3. ' Another ancillary question is whether a statute, which creates a right, can competently regulate the incidence of appeal, if any. Some case-law on the point can be readily found, which is to the effect that a right of appeal is a creature of statute law and a statute may or may not confer that right and where it is conferred, the legislature, in its wisdom, may think fit to control or regulate it.
4. On the plane of such reasoning, the conditions set for preferring an appeal under the Ordinance may not be invalid, as broadly held in the two cases of Khurshid Alam and Zarat International above.
5. ' But the petitioners here do not question the validity of section 9 in the Banking Tribunais Ordinance. They, in line with the opinion in Majeed Enterprises and U.K. Garments (ibid)., to which one of us namely, Wajihuddin Ahmed, J., was a party, only maintain that such a conditional right of appeal, as conferred by the section, is burdensome and illusory and the petitioners, in the absence of an adequate alternative remedy, conferred by' the statute viz. The 1984 Ordinance, are entitled to be relieved in the exercise of Constitutional jurisdiction, which they have invoked. The decisions relied upon by the petitioners do not seem to have been referred in the cases of Khurshid Alam and Zarat International, but an argument that the right of appeal under the Ordinance was illusory was expressly addressed and countered by observing that the conditions for the appellate remedy were lawful and unassailable and further that a defaulting customer could not bypass his obligation to honour the finance" by simply not appealing and coming, instead, in the Constitutional jurisdiction of this Court. Broadly, the proposition should be correct. In this background, while there may not be absolute unanimity of views between the Benches of the Court, as reflected in the dicta under discussion, it may be plausible to argue that in appropriate cases of hardship where, for demonstrably equitable reasons, a customer is able to show that he remains absolutely unable to satisfy the condition necessary to fulfil in order to avail the right of appeal under section 9 aforesaid, the High Court, requirements of Article 199 being satisfied, in given circumstances of a case, may extend the Constitutional relief. Whether that element exists in these cases has not been argued before us.
6. ' Be that as it may, the learned counsel have also drawn our attention to the Supreme Court case of M/s. Tank Steel and Re-Rolling Mills (Pvt.) Ltd. v. Federation of Pakistan and others PLD 1996 SC 77, where, inter alia, the following observation occurs at page 84 of the report:-- "12. Last but not the least, under section 10 and subject to the provisions of appeal under. Section 9 of the first Ordinance, no Court or other authority is competent to call or permit to be called in question any proceedings, order, judgment or decree of a Banking Tribunal or the legality or propriety of anything done or intended to be done by the Banking Tribunal thereunder. The writ petition was, therefore, not competent."
7. ' Much as Mr. Tanoli for the petitioner has drawn our attention to the purported conflict of opinion in the High Court cases, cited as above, we have also been impelled to consider whether or not the quoted observations of the Supreme Court are per incur am inasmuch as Constitutional- jurisdiction of a superior Court, such as that recognised and codified in Article 199 of the Constitution, could not be taken away by a sub-Constitutional legislation, in this case the Banking Tribunals Ordinance, 1984. The connotations of a per incuriam decision are too obvious to be dilated upon.
8. ' However, in view of the complexity of issues involved in theSe proceedings, it would be counter- productive to prolong the same either for steering clear of or resolving the claimed conflicts of opinion as above dilated or even to address the per incuriam nature, if any, in the cited decision of the Supreme Court. We would, therefore, prefer to follow the reproduced observation of their Lordships in the case of M/.s. Tank Steel and Re-rolling Mills (Pvt.) Ltd. And dismiss these petitions, leaving the aggrieved persons to pursue such other or further remedies, as be available.
9. At this stage, Mr. Tanoli has drawn our attention to the controversy in Constitutional Petition No,D- 281/95, Abdul Ahad v. Agricultural Development Bank of Pakistan, and maintains that such case may be segregated from the bunch of cases being dealt with together in that the Agricultural Development Bank of Pakistan had instituted the relevant suit involved in such petition at a time when the defendant had already died. In other words, the suit was filed against a dead man. On these pleas, it is maintained that the decree is void, does not bind the legal representatives of the deceased and the legal representatives, being non-parties, may not be saddled with the obligation to prefer an appeal under section 9 of the Ordinance. That being so, the petition may be entertained.
10. ' In the context, we would like to reproduce the relevant part of section 9 in the Banking Companies Ordinance, which is this:-- "9. Appeal.--(1) Any person aggrieved by any order of the Banking Tribunal passed under subsection (4) or subsection (5) of section 6 or decree or sentence passed under this Ordinance may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court: ' Provided that no appeal filed by the defendant against a deciee shall be entertained unless the defendant has deposited with the Banking Tribunal the amount claimed in the suit under subsection (6) of section 6 of the decretal amount."
11. It will at once be seen that while section 9(1) aforesaid confers a right of appeal on any aggrieved person, the first proviso of subsection (1) of section 9 makes it obligatory only for a defendant to deposit the amount claimed in the suit for the decretal amount, as the case may be, no obligation being entailed by a non-defendant for such a deposit. If, therefore, the defendant in the relevant suit was dead when the suit was filed against him, his legal representatives, unless having been joined without exception, would equally be non-parties in the proceedings and may not be subjected to the obligation of the making the aforesaid deposit as a condition precedent for appeal under section 9. As to the right of P non-party aggrieved person to prefer an appeal such right, though at times discretionary with an aggrieved person, has long since been settled. Here section 9 expressly recognizes that right.
12. ' While the petitions are disposed of in terms foregoing, the parties, in the circumstances, are left to bear their own costs.