1. ' Revision Petitions No,429, 430 and 431 of 1995 have been laid before me in following circumstances. On 11-1-1995, Sardar Farooq Ahmed Khan Legari, President of Islamic Republic of Pakistan/herein respondent/plaintiff, brought a suit for damages against Mian Muhammad Nawaz Sharif/herein petitioner/defendant in the Court of learned Senior Civil Judge, Islamabad. This suit was contested. Necessary issues were framed. Some evidence of the plaintiff/respondent was recorded and the case was fixed for the statement of respondent/plaintiff on 14-12-1995. The petitioner filed four separate applications for the purpose of summoning of record mentioned therein and witnesses fully described therein. These applications were contested and rejected by learned Senior Civil Judge on 6-12-1995. Feeling dissatisfied, the petitioner filed three Civil Revisions No,914, 915 and 916 of 1995 at the Principal Seat of Lahore High Court. These came up for hearing before my learned brother Munir. . A. Sheikh, J. On 10-12-1995 and were sent to my lord the Chief Justice of - Lahore High Court, Lahore. In this way, these petitions came up for hearing before my lord the Chief Justice on 13-12-1995. These petitions were returned to petitioner and he was directed to file them in Lahore High Court at Rawalpindi Bench. This happened vide order dated 13-12-1995.
2. Pursuant to the above order, petitioner filed these petitions at Rawalpindi Bench which were renumbered as 429, 430 and 431 of 1995. These petitions came up for hearing before a Division Bench of this Court comprising of my learned brothers Raja Abdul Aziz Bhatti and Muhammad Jaffar Hashmi, JJ. On 9-1-1996. On that date, it is stated at Bar that my learned brother Raja Abdul Aziz Bhatti, J. Had stated that since he had been the Public Prosecutor against the petitioner before elevation, therefore, it was not proper for him to sit in the Bench. It is to be noted over here that this part of the facts was not recorded by the Division Bench. However, there is no dispute about that statement attributed to my learned brother Raja Abdul Aziz Bhatti, J. In the context of above, the petitioner filed three applications for the transfer of aforestated revision petitions from that Division Bench to another Division Bench at Principal Seat. These applications carried Nos.17-C, 18-C and 19- C of 1996. These came up before my lord the Chief Justice on 11-1-1996. During the course of hearing, the learned counsel for the petitioner made a statement that he be permitted to convert revision petitions as applications for rehearing/reconsideration/review and the matter be laid before me, who was seized of the main suit in pursuance of the order of transfer passed by my lord the Chief JustiCe. Raja Muhammad Anwar, the learned counsel for the respondent, at that juncture, stated that the transfer applications, in view of the above statement, had been rendered infructuous. In that scenario of the case, my Lord the Chief Justice passed the following order:-- "3. I have heard the learned counsel for the parties at some length and perused their statements.
2. As the case has been transferred to the original jurisdiction of the High Court by consent order dated 13-12-1995 passed in Transfer Application No,768/C of 1995 whereby the parties agreed that the trial be concluded at the Rawalpindi Bench of this Court within three months, it is desirable to avoid technicalities in the interest of expeditious disposal of the suit. It is, therefore, directed that Revision Petitions Nos.429/95, 430/95 and 431/95 pending before the Division Bench of the Rawalpindi Bench of this Court be laid before my learned brother Mian Allah Nawaz, J., at the Rawalpindi Bench on 16-1-1996 for appropriate orders, in the light of the statement made by Mr. Muhammad Akram Sheikh, Advocate, learned counsel for the defendant/petitioner."
3. ' As a result of the above order, these petitions have been laid before me.
3. The question regarding my power to deal with the matter cropped up at the very outset. Raja Muhammad Anwar, the learned counsel for the respondent made the following submissions: Firstly; That revision petitions were/are pending before Division Bench at Rawalpindi Bench.
4. According to the learned counsel, there can be no dispute with the proposition that a case assigned to Division Bench, cannot be withdrawn and entrusted to another Bench. This rule, according to learned counsel, is well-settled and is in line with the concept of independence of superior judiciary. Explaining this point further, the learned counsel contended that by the statement made by Mr. Muhammad Akram Sheikh, learned counsel for the petitioner, he has withdrawn his revision petitions and accordingly the Hon'le Chief Justice has sent these matters to this Hon'ble Bench to treat them as petitions for reconsideration/review and pass appropriate order being a Trial Judge, in accordance with law.
5. ' Secondly; That in exercise of the powers under rule 10 of the High Court Establishment of Benches Rules, 1981. This Court is competent to pass the order and that too in line with the order of the Chief Justice.
6. ' Mr. Muhammad Akram Sheikh, learned counsel for the petitioner on the other hand, maintained that the objections raised by the learned counsel for the respondent before this Court were not raised before the learned Chief Justice and so now the learned counsel for the respondent was precluded to raise these questions. Furthermore, the technical objection, with regard to my jurisdiction, in special circumstances of the case and commitment of the parties to conclude the trial within three months, should not be given much importance and this Court should proceed further to decide these revision petitions in the light of the orders of the learned Chief Justice.
7. Moreover, this learned Court having been entrusted with these petitions may also hear them as petitions for reconsideration and review of impugned order and .Appropriate orders may be passed in accordance with the merits of the case.
4. I have heard the learned counsel for the parties at considerable length, carefully attended to their submission and have examined the order of my lord the Chief Justice. From the above, it appears that the revision petitions filed by the petitioner are still pending adjudication before the Division Bench of Lahore High Court at Rawalpindi Bench. Neither, these petitions were withdrawn from that Bench nor they were entrusted to me. It is necessary to mention that one of the Members of the Bench, i,e, my brother Raja Abdul Aziz Bhatti, J. Expressed his unwillingness to sit in the Bench.
8. The question as to whether these revision petitions can be withdrawn, is of not much importance and was not agitated before me in depth, although reference was made to Abdul Aziz Hamad AlGosaibi v. PIA Corporation (PLD 1995 Karachi 566) to contend that my lord the Chief Justice has no power to withdraw the case assigned to one Bench and give it to other Bench. This question was so half-heartedly argued that I am not able to dilate any more. The fact remains that these revision petitions originated from an interim order passed in the suit where the amount claimed' is Rs,4,00,00,00,000, so the revisions under High Court Rules are maintainable before the Division Bench. The perusal of the order of my Lord Chief Justice clearly indicates that no order has been passed with regard to conversion of revision petitions as reconsideration/re-hearing/review applications but has been directed that I should proceed to pass an appropriate order. My lord the Chief Justice has very graciously recorded the statements of learned counsel for the parties. Mr. Muhammad Akram Sheikh, the learned counsel for the petitioner had stated that he wanted to convert these revision petitions as applications for reconsideration/review applications. On this very material, "I am in agreement with the learned counsel for the respondent that these revision petitions are still pending before the Division Bench and I have no jurisdiction to treat these revision petitions as applications for reconsideration/review applications. This is the prerogative of the Division Bench. It is a settled proposition of laW that the jurisdiction cannot be conferred upon any Court/Tribunal/Authority by the consent of the parties. It is also settled that there is no estoppel against lavv. This being the position, the contentions raised by learned counsel for the petitioner that the learned counsel for the respondent is not entitled to raise this question, pale into insignificance and is accordingly repelled. I accordingly send the matter to my lord Chief Justice for appropriate orders.
9. ' The order of this Court alongwith the relevant record of the case, shall be sent by the Deputy Registrar for being placed before my lord the Chief Justice by special messenger, today.
10. Order accordingly.
11. 1996 CLC 1718 [Karachi] Befote Abdul Hafeez Memon, Actg. C.J. and Nazim Hussain Siddiqui, J ORIENT MATCH COMPANY (PVT.) LTD.---Petitioner versus BANKING TRIBUNAL FOR KARACHI AND SUKKUR and others-Respondents Writ Petition No,1476 of 1995, decided on 8th April, 1996.
12. Banking Tribunals Ordinance (LVIII of 1984)--- ----Ss. 2(a)(iii), (e) 5(3) & 13---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction---Jurisdiction of Tribunal---Validity---"Finance"--- Definition-Petitioner-Company which took on lease five motor vehicles from respondent, having failed to pay to respondent lease amount according to terms of agreement arrived at between the parties, respondent filed suit for recovery of lease amount against petitioner before Banking Tribunal---Petitioner had challenged jurisdiction of Banking Tribunal contending that transaction in question was not covered by definition of "finance" as appearing in Banking Tribunals Ordinance, 1984---Term "finance" included an accommodation or facility under a system which provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, lease, rent sharing and licensing etc.- Accommodation/facility as envisaged in the agreement arrived at between the parties, was availed by petitioner-Company and agreement in essence related to financial transaction between the parties---Terms of agreement clearly showed that agreement in question was covered by definition of "finance" as given in S. 2(e) of Banking Tribunals Ordinance, 1984 and respondent was a company within meaning of S. 2(a)(iii) of that Ordinance---Tribunal under S. 5(3) of Banking Tribunals Ordinance, 1984 had exclusive jurisdiction to decide question as to existence or otherwise of the "finance"---Tribunal, thus, was the only forum available to respondent for deciding his claim---Contention of petitioner that Tribunal had no jurisdiction to decide case of respondent, was repelled.---[Words and phrases--Jurisdiction]. [pp. 1721, 1722] A, B & C Syed Iqbal Ahmed for Petitioner.
13. Abid Hameed Puri for Respondent No,2.
14. Date of hearing: 27th February, 1996.
15. ' NAZIM HUSSAIN SIDDIQUI, J.---The petitioners have challenged the order dated 27-4-1995, passed by respondent No,1 the Banking Tribunal, Karachi, whereby the petitioners' application challenging jurisdiction of said Tribunal was dismissed. The facts relevant for decision of this petition are as follows: ' The respondent No,2 M/s. Nat over Motor Lease Ltd. Had filed a suit for recovery of Rs,6,82,729 against the petitioners before said Tribunal on the basis of Pleet Lease Agreement, dated 27th August, 1991, executed by the parties whereby, the respondent No,2 leased out fine motor vehicles to the petitioners and the latter did not pay the lease amount as per the terms of said agreement.
16. The petitioners were served by publication on 13-12-1994 and by bailiff on 22-12-1994; but did not file written statement within statutory period ' of 10 days, as such, by order dated 13-2-1995 they were declared ex parte. Thereafter, the petitioners filed an application under Order VII, Rule 10 read with section 151, C.P.C. Which was dismissed by the order, which has been impugned in this petition.
17. ' The jurisdiction of the Tribunal was challenged on two grounds. Firstly, it was urged that the transaction in question was not covered by the definition "finance", as appearing in the Banking Tribunals Ordinance, 1984, hereinafter referred to as the Ordinance, and secondly, the petitioners resided at Lahore and it being so the Tribunal at Karachi had no territorial jurisdiction in the matter.
18. Both these contentions were repelled by the learned Tribunal. Disposing of the first plea learned Tribunal observed that definition of "finance" included an accommodation or facility under the system, provided on the basis of "lease". It is noted, as is evident from the impugned order, that this ground though was pressed at the initial stage, but was dropped later on. As regards second ground, learned tribunal observed that the agreement in question was executed at Karachi, therefore, the cause of action, if not wholly, in part at least arose at Karachi and in that view of the matter the tribunal had jurisdiction in the matter.
19. ' In order to appreciate the pleas raised in this, matter, it would be advantageous to reproduce sections 2(a), 2(e) and subsection (3) of section 5 of the Ordinance, which are as follows: "Section 2-A:
(a) "banking company" means--
(i) a bank as defined in Banks (Nationalization) Act, 1974 (XIX of 1974);
(ii) a company incorporated outside Pakistan and transacting the business of banking in Pakistan; and
(iii) a company specified in the Schedule; Section 2(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 of fee of any kind, purchase and sale of any property, including, commodities, patents, designs, trademarks and copyrights, bills of exchange, 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 facility based on interest and 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; ' Subsection (3) of section 5: "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 decisions as to the existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal;"
20. ' Section 13 of the Ordinance empowers the Federal Government to modify the Schedule as to add any entry thereto or omit any entry therefrom. Under this section, the Federal Government on 26th October, 1994 issued a Notification whereby the respondent No,2 were included in the Schedule.
21. ' Mr. Syed Iqbal Ahmed learned counsel for the petitioners contended that though the term "finance" as defined in the Ordinance includes "lease" but the lease are of two types i,e, "finance lease" and "operating lease". Learned counsel submitted that the lease of respondents No,2 is not a "finance lease". He also argued that the International Accounting Standards L A .S. 17, lays the following three tests for a ' finance lease' as per appendix of IAS 17:
(a) Ownership transfer by the end of lease term;
(b) Existence of bargain purchase option in lease contract;
(c) Lease term to be for major part of useful life of assets.
22. ' Learned counsel concluded that in view of the above three tests, the lease in question is not finance lease and it being so the tribunal has no jurisdiction in the matter. Above contention is void of any force. Suffice it to say that the phrases "finance lease" and "operating lease" in the I.A.S. 17 are used in the financial statements of accounting for leases. They have nothing to do with term "lease" as used in the definition of fmance.
23. The terms "finance" as defined in the Ordinance included an accommodation or facility under a system which provided on the basis of participation in profit and loss, mark-up, or mark-down in price, hire-purchase, lease, rent-sharing, - licensing etc. It is not denied that the accommodation/facility, as envisaged in the agreement was availed by the petitioners and the agreement in essence relates to the financial transaction between the parties. Fleet Lease Agreement amongst others contains the following terms and conditions:
(3) The lessor shall upon receiving the Adjustment Rentals hand over possession of the vehicle to the lessee in an acceptable condition together with all import and registration formalities duly completed. The lessee shall sign a vehicle receipt to indicate satisfactory delivery of such vehicle by the lessor and the time and date thereof.
(4) The lessee shall pay to the lessor rental charges as per rates and at the frequency of payments stipulated in relevant Lease Form. Proper receipts shall be issued in respect of such payments.
(5) That the entire rental charges for the first frequency period would become due and payable strictly in accordance with the terms of the individual Lease Form. The first frequency period shall commence on the day the vehicle is ready for delivery to the lease . Irrespective of whether the vehicle may or may not have been put to any use.
(6) That the lessor may at their sole discretion assign the whole or any part thereof of the rentals payable to them by the lessees, in terms hereof, to any Bank or Financial Institution, and the Lessees will upon receiving written intimation, pay the rentals thereafter to the Bank/Financial Institution nominated therein directly. Any change in this agreement shall only he made with prior consent of the said Bank/Financial Institution.
(7) Throughout the agreed period of lease, the vehicle shall remain registered in the name of the lessor and the Road Tax and Other Taxes due shall be paid by the lessor immediately on demand.
24. Any nonpayment or penalty suffered by the lessee on this account, shall be payable by the lessor on demand.
25. Bare reading of above shows that the agreement in question is covered by the in definition of "finance" as given in the Ordinance and the respondent No,2 is a company within the meaning of section 2(a)(iii) of the Ordinance.
26. ' Learned counsel for the Petitioners next argued that the agreement between the parties was executed on 10-4-1988, 27-8-1991, whereas Notification under section 13 of the Ordinance, was issued on 26th October, 1994. According to learned counsel, the Notification could not be retrospective in its effect, as such, the agreements in question were not covered by said Notification. It is noted that the suit was filed before the tribunal in the month of November, 1994 and at that time said Notification was in the field. Under subsection (3) of section 5 of the Ordinance, the Tribunal has exclusive jurisdiction to decide the question as to the existence or otherwise of the finance. Under these circumstances, the tribunal was the only forum available to the respondent No,2 for deciding their claim. The question, in fact, has been decided by the tribunal that it has jurisdiction in the matter and that the case is covered by the definition of finance referred to above.
27. ' Learned counsel for the petitioners also contended that the vehicles were delivered to the petitioners at Lahore, and the petitioners also resided at Lahore, therefore, the cause of action, if any, arose at Lahore and the Tribunal at Karachi had no territorial jurisdiction in the matter. This point has already been decided by the Tribunal and we agree with its finding mentioned earlier.
28. ' Accordingly, we do not find any merits in this petition and the same is dismissed in limine with no order as to costs.