JUDGMENT MUNIR A. SHEIKH, J.- In this Constitutional dated 18.7.1994 passed by the Special Judge Banking through which the petitioner's applications made under Order 13, Rules 1 & 2 read with Order 8, Rule 1, CPC, under Order 18, Rule 17; CPC along with notice under Order 12, Rules 2 & 3, CPC requiring the respondents to admit or deny the documents have been rejected.
2. The respondents filed a suit against the petitioner- Bank for the recovery of an amount of Rs.
44,33,200/-. There was a dispute as regards goods pledged etc. The respondents in their affirmative evidence produced documents Ex. P.5 to P.21.
An objection on behalf of the petitioner regarding the % admissibility of the said documentary evidence was challenged on the ground that the same was neither entered in the list of reliance nor produced on the first date of hearing along with the plaint. In-spite of this objection the said documents were received in evidence and admitted with the observation that the objection as regards their admissibility on the above grounds shall be decided at the time of deciding the suit finally. The petitioner made an application under Order 13, Rules 1 & 2 read with Order 8, Rule 1, CPC for allowing him to present in evidence the documents mentioned in this application. Notice was also served on the respondents under Order 12, Rule 3, CPC calling upon them to admit or deny the said documents and another application was made under Order 18, Rule 17, CPC for recalling the witnesses of the respondents/plaintiffs to confront him with the said documents which were sought to be presented/produced in evidence. The Special Court Banking through the impugned order dated 18.7.1994 rejected these applications made under Order 13 Rules 1 & 2 read with Order 8, Rule 1, CPC on the ground that no good cause was shown for failure of the petitioner to produce the said documents as required under Order 13, Rules 1 & 2, CPC on the first date of hearing which was a condition precedent to be fulfilled for the production of such evidence at the later stage. The application made under Order 18, Rule 17 and notice issued under Order 12, Rules 2 & 3, CPC was also rejected on the ground that no document could be produced in evidence unless the witnesses was confronted with the same and the petitioner having failed to do so could not be permitted to produce the said documents.
3. Kh. Saeed-uz-Zafar, Advocate, learned counsel for the respondents has raised a preliminary objection about the maintainability of this Constitutional petition. His argument was that the impugned orders are interlocutory and Section 12 of the Banking Companies (Recovery of Loans)
Ordinance, 1979 has expressly barred an appeal against such an order as such it would be against the express command of the law if the petitioner is allowed to challenge these orders in the Constitutional petition as it would amount to allow him a remedy indirectly which has been barred under the law. He also argued that this Court has consistently taken a view that normally against an interlocutory order no writ petition should be entertained and the aggrieved party should be left to challenge the same in appeal against the final judgment and decree in case the same is passed against it. Reliance has been placed Ori judgments reported as Export Promotion Bureau and others Vs. Qaisar Shaft Ullah (1994 SCMR page 859), Syed Ali Azhar Naqvi Vs. The Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others (PLD 1994 Karachi 67), Messrs Salman Mehmood Cotton Ginners Vs. Special Judge, Banking (II) (PLD 1982 Lah. 353), Messrs Narumal Jetomal Vs. Judge of the Special Court of Sindh (1993 CLC 2695) and Highnoon Laboratories Ltd Vs. Mst. Farida Jawaid Malik and another (PLJ 1990 Lah. 558).
4. I have examined these judgments. The rule laid down in these judgments is that normally inter- locutory order should not be interfered with in Constitutional jurisdiction. There is Nothing in these judgments that there is any bar against the maintainability of the Constitutional petition against the interlocutory orders. In my view the question as regards interference in the interlocutory orders in Constitutional jurisdiction under Article 199 does not relate to the jurisdiction of the Court, for, it has not been held that the Constitutional petition is barred against such an order but the same relates only to the exercise of discretion by the Court. There is no hard and fast rule in this regard and in my considered view each case is to be examined on its own merits and the Court should come to a conclusion whether in the facts and circumstances of each case it would like to exercise its discretion to interfere in the interlocutory orders. This view finds support from the following reported judgments reference to which was made by Mr. Shahid Hamid, Advocate, learned counsel for the petitioner during arguments: -
1. Aminullah and 2 others Vs. Qalander Khan and 4 others (1993 SCMR 2307)
2. Dur Muhammad Piracha Vs. Judge Special Court Banking and others (1982 CLC 1625)
3. Ijaz Ahmad Piracha Vi. Judge, Special Court Banking and others (1982 CLC 2367)
4. Sher Ali Akhtar and another Vs. Messrs Habib Bank Limited and another (1992 CLC 1964) and
5. Mian Rahim Gul Syed Kaka Khel Vi. District Judge (South) Karachi (1994 CLC 94).
It may be noticed that in none of these case it was held that the rules of procedure are meant for advancing the cause of justice rather than to hamper it and the evidence should not be shut.
It has been held in judgment reported as Utility Stores Corporation of Pakistan Limited Vs. Punjab labour Appellate Tribunal (PLD 1987 SC 447) that the Courts are required to decide the cases in accordance with law and if the Court goes wrong in law this Court would be fully justified in interfering in the order in Constitutional jurisdiction. It has also been held in judgment reported as Umar Hayat Khan Vs. Inayat Ullah Butt and others (1994 SCMR page 572) that where an order is patently illegal this Court would be justified in interfering in the same in Constitutional jurisdiction.
5. I have examined the facts of this case in order to determine whether at this stage discretion should be exercised in favour of interference in the impugned orders under Article 199. I have noticed that the petitioner has been discriminated by the Banking Court as regards production of documentary evidence. The respondents/plaintiffs when produced documents Ex. P.5 to P. 21 in evidence an objection was raised that the same could not be received and allowed to be presented for want of reliance in the list of reliance and production as required under Order 13.
Rules 1 & 2, CPC. These documents were allowed to be produced in evidence and admitted subject to decision on the objection raised by the petitioner regarding their admissibility which as observed by the Court was left to be examined and decided at the time of the decision of the suit.
The petitioner has not been allowed to present and produce its documentary evidence on the ground that no good cause had been shown for non-production of the same at the first date of hearing as required under Order 13, Rules 1 & 2, CPC without application of mind that it was Order 8, Rule 2, CPC which was applicable to the petitioner being the defendant in the suit and there is nothing in the said provision of law that a defendant was required to establish good cause for non- production of the documents earlier whereas the Court was vested with a wide discretion to allow the defendant to produce documentary evidence which was not entered in the list of reliance. It is well established law that a discretionary jurisdiction vested in the Court has to be exercised judicially on application of mind to the facts as also the law, based on relevant considerations and over all to do complete justice in the case. The Banking Court in this case failed to exercise discretion in the matter of allowing the defendant to produce documentary evidence on the assumption as if it was subject to the same strict and a strangent provision of Order 13, Rules 1 & 2, CPC as were applicable to a plaintiff. It is a case of failure of discretionary jurisdiction vested in the Court. The order thus suffers from patent illegality which has resulted in grave injustice, therefore, it is a fit case for interference at this stage under Article 199 of the Constitution to save the parties from multiplicity of the proceedings.
6. The respondents in response to a notice under Order 12, Rule 2 & 3, CPC neither denied the execution of those documents nor admit the same and only an objection was taken that the said documents should have been confronted to the witness of the plaintiff when he was examined in the affirmative evidence. The petitioner also made an application under Order 18, Rule 17, CPC for recalling the said witness in order to confront the said document as pointed out by the respondents. The said application has also been rejected on absolutely irrelevant and unfounded consideration not recognised by law. As has already been pointed out the rules of procedure are meant for advancing cause of action and not to hamper it. As has been observed earlier the petitioner has been discriminated in this regard. Ex. P.5 to P.21 were allowed to be produced in evidence by the respondents inspite the objection and without getting the same confronted to the person who had allegedly executed the same and the decision as to their admissibility was postponed to a stage when the main suit was to be finally decided. It would not be in the interest of justice to shut the evidence of the petitioner at this stage and ask him to wait till the decision of the suit and challenge the same in appeal against the final judgment and decree which woud not only prolong the litigation and would also not be in the interest of the parties as in that case the remand of the case to the trial Court would result in delaying the decision of the rights of the parties.
7. For the foregoing reasons the impugned orders passed by the Banking Court are not sustainable.
This writ petition is accepted. Order dated 18.7.1994 passed by the Banking Tribunal are hereby declared to be without lawful authority and of no legal effect. The Banking Tribunal is hereby directed to recall the witness of the respondents and allow the petitioner to confront him with the documents and should also be allowed to be produced in evidence because this is what the law required the said Court to do. There will be no order as to costs.