1. ' The 4 (four) applications heard by me which are proposed to be disposed of through this order are all filed on 4-6-1992 by various defendants under Order XXXVII, Rule 4, C.P.C. And section 12(2), C.P.C. With the prayer to set aside judgment and decree dated 30-4-1990 and to stay execution thereof with further prayer for grant of unconditional leave to the defendants to appear and defend the suit.
2. ' As per the record of proceedings one M/s. Osman Brothers, a partnership incorporated at Dubai, had opened an account with the plaintiff-bank on 25-5-1975 through the defendant No,5 namely, Arif Osman. The defendants Nos.2 to 10 were partners of the said firm who was granted overdraft facilities which were duly utilized from time to time. On default in payment, the plaintiff-bank filed recovery proceedings in Dubai against the defendants Nos.2 to 8 on 1-5-1988. The suit was decreed with interest at 9% per annum from the date of institution till payment. Since the defendants had failed to satisfy the judgment and decree, the suit was filed on 5-8.1988 with money claim under the Banking Companies (Recovery of Loans) Ordinance, 1979, 'hereinafter referred as the 1979- Ordinance'. Upon presentation of plaint, as above, though the summons were issued by the office in all the three (3) modes prescribed under the Banking Companies (Recovery of Loans) Rules, 1980. An office note was prepared on 1-2-1990 regarding maintainability of the proceedings itself in the following terms: ' The matter is referred to Court for further orders as to whether under the above circumstances the present suit may be treated as a suit under the Banking Companies Ordinance or an ordinary suit under sections 13 and 20 of the C.P.C,"
3. ' Obviously, the said office note was in the nature of objections and had been prepared on account of averments contained in the plaint particularly the prayer clause whereby decree was sought on the basis of foreign judgment/decree dated 23-5-1988 and alternatively on the basis of original cause of action and the statement of accounts. The office objection was put up for orders initially on 11-2-1990, although the defendants had failed to apply for grant of leave to appear and defend the proceedings despite publication in daily "Hurriat" dated 17-10-1989. It is pertinent to record here that the suits falling under summary chapter prescribed by Order XXXVII, C.P.C. And/cir the Banking Laws are fixed for final disposal upon failure of the defendants to apply for grant of leave, as above.
4. It also appears from the record that the summons sent through post were returned with the remarks of addressee being not available at the given address; whereas the Bailiff had returned summons with remarks that the defendants Nos.1 and 4 had refused acceptance thereof. The copy of publication provided in office by the plaintiff shows that the description of the forum where the proceedings had been instituted (this Court) was not mentioned therein. On 30-10-1989, by way of late diary, the additional Registrar (O.S.) of this Court had passed order requiring the learned Advocates to satisfy him about service of summons. The position remained unchanged till 29-11- 1989 when the plaintiff was required to submit written-reply about maintainability of suit under Order XXXVII, C.P.C. Within two (2) weeks therefrom.
5. ' On 10-1-1990 without deciding if summons were served upon the defendants or otherwise, the matter was placed in Court for orders on the abovementioned reference dated 1-2-1990 an its maintainability. On 30-4-1990, the matter was accordingly put up in Court when the learned Judge held that the suit did not suffer from any illegality and had competently been filed. Instead of leaving the matter at that, on the assumption that all the defendants were served through second publication allegedly effected on 17-10-1989, the plaintiff was held entitled to decree in terms of the 1979 Ordinance read with Order XXXVII, Rule 2, C.P.C. As well as under Order IX, Rule 6, C.P.C.
6. ' On 2-10-1991 Execution Application No,115 of 1991 was filed by the plaintiff which is still pending.
7. Notice of Execution application under Order XXI, Rule 22, C.P.C. Was issued to the defendants. On 6- 2-1992, the Additional Registrar (O.S.), passed the following order in the said Execution Application: "Notice under Order 21, rule 22, C.P.C. Issued and returned un served with B/Report that staff of judgment-debtors 1 and 2 refused to accept the notices (of judgment-debtors 1 and 2) on refusal he affixed the copies on there and other, judgment-debtors 3 to 10 were not available at the time of service."
8. ' On 4-6-1992, the four applications which have been heard by me were filed, as above, for setting aside the decree dated 30-4-1990. Mr.Muneeb Akhtar appearing for the defendants has urged that the defendants had come to know about the above proceedings on 31-5-1992 when the defendant No,4 namely Anwar Osman was informed by Farooq Usman Tabani, brother-in-law of defendants Nos. 3 to 8 who happened to be present in the Court of G.H. Malik, J. (as his lordship then was) in connection with his own cases and learnt about Execution Application No,115 of 1991 which was fixed for orders in Court. The present applications were thereafter filed without loss of such time. It is further urged that the Banking Companies (Recovery of Loans) Ordinance, 1979 was not applicable to the suit filed by the plaintiff hence the judgment and decree dated 4-6-1992 are devoid of jurisdiction. Alternatively, it is contended that even if the 1979 Ordinance is found applicable by virtue of section 7(2) thereof, procedure prescribed by Order XXXVII, C.P.C. In turn, would become applicable to the present case with the result that rules 4 and 7 of Order XXXVII, are also attracted.
9. According to Mr. Muneeb Akhtar, power under section 12(2), C.P.C. Can consequently be exercised.
10. It is further contended that the judgment and decree dated 30-4-1990 suffers from jurisdictional error going to root of the matter inasmuch as the assumption that the defendants were served through second publication on 17-10-1989 was erroneous and the mandatory provisions of Order V, Rule 19, C.P.C. Had not been complied with before resorting to publication and in relation to the procedure for service through bailiff. As regards summons sent through registered post, it is urged that incorrect addresses were willfully stated in the title despite knowledge about correct address with the result that the summons were returned by the postman with remarks that the addressees were not available. Besides, it is urged that the limitation for filing application under Order XXXVII, Rule 4, C.P.C. Is three years and the present applications, in any event, are within time. The learned counsel for the defendant has further urged that Article 164 of the Limitation Act is not applicable to the present proceedings and the suit in any event, could not be decreed on 30th April, 1990 which was not the date of hearing of the suit.
11. ' In reply, Mr.Sajid Zahid representing the plaintiff-bank has referred to certain facts which according to him are important to be considered for deciding the present applications. It is pointed out that the defendants Nos.2 to 10 are very closely related to each other and are partners; the account opening form describes the defendant No,1 as a partnership concern and initially three of the partners were required to sign any communication or cheques but through letter dated 10-5- 1986, the plaintiff had informed that any one of the partners could sign; earlier on 10-5-1980 Zubair Osman had informed the plaintiff-bank about intended dissolution of the firm but through its reply dated 2-6-1980 the plaintiff-bank had categorically informed the defendants that the dissolution was not acceptable to it. Mr. Sajid Zahid has then raised preliminary objection about maintainability of the present applications. It is firstly urged that by virtue of the provisions contained in section 12 of 1979 Ordinance, the only remedy available to the defendants was to prefer appeal; and, challenge to any judgment or order passed by the Special Court exercising jurisdiction under the 1979 Ordinance in any other mode including application under Order XXXVII, Rule 4, C.P.C. Or under section 12(2), C.P.C. Is not permissible. Secondly, but without prejudice to the first contention, it is urged that if the provisions of Order XXXVII, Rule 4, C.P.C. Are found applicable, the time for filing application thereunder is 30 days by virtue of Article 164 of the Limitation Act and the present applications having been filed after a long delay were liable to be dismissed; thirdly, the defendants should not be allowed to circumvent the provisions of 1979-Ordinance by pleading applicability of Article 181 of the Limitation Act to the present applications since such an approach shall result in undue advantage to the benefit of a weary borrower; and finally, the provisions of section 5 of the Limitation Act are not applicable to an application under Order XXXVII, Rule 4, C.P.C.
12. And in any event, the defendants had failed to apply under section 5 of Limitation Act and to show sufficient reasons for condonation of delay in filing the applications for recall of judgment and decree dated 30-4-1990 passed in the present proceedings. On merits, it is urged that the defendants had knowledge of the proceedings from the very inception and the present applications are filed with the mala fide intention of delaying the proceedings for execution of decree. According to Mr. Sajid Zahid the merits cannot even be gone into at this stage until leave to defend the proceedings is granted to the defendants.
13. ' Taking up first, the question of maintainability of the present applications. Sections 3, 7, 11 and 12 of the 1979 Ordinance, being material may be reproduced for convenient reference:-- "Section 3.--The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided,, not in derogation any other law for the time being in force.
14. ' Section 7.--(1) Suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded a Special Court shall not allow adjournment.
(2) In the exercise of its civil jurisdiction, the Special Court shall 'in all suits before it, including suits based on mortgages of all kinds or statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908).
15. ' Section 11.--Subject to the provisions for appeal in section 12, no Court or other authority shall call or permit to be called in question any order, judgment or sentence of a Special Court or the legality or propriety of anything done or intended to be done by the Special Court under this Ordinance.
16. ' Section-12.--(1) Any 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 or 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.
(2) An appeal under subsection (1) shall be on any one of the following grounds, namely:-
(a) the decision being contrary to law or to some usage having the force of law, or
(b) the decision having failed to determine a material issue of law or usage having the force of law, or
(c) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits.
(3) An appeal may be preferred under this section from decision made ex parte.
(4) An appeal under this section shall be heard by a Bench of not less than two Judges.
(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with a High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount."
17. ' It will also be advantageous to reproduce the provisions contained in Order XXXVII, Rules 3 and 4, C.P.C. Which are as follows: "Order XXXVII, Rule 3.--Defendant showing defence on merits to have leave to appear.--(1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit. Rule 4.-- Power to set aside decree.--After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit."
18. ' The 1979 Ordinance is a special law which was promulgated with a particular object, the object being immediate recovery of outstanding dues of the bank through trial unmarred by technical delays.' For such purpose Special Courts were set up but with the power to exercise civil jurisdiction.
19. It was never intended to say good by to the procedure for trial of civil matters altogether and particularly the evidence aspect. However, the benefit of summary procedure, which was applicable only to the cases covered by negotiable instruments, was extended to all suits falling within the ambit of 1979-Ordinance including those based on mortgages. For such reason specific provision was made in section 3 of the 1979-Ordinance providing therein that the Ordinance had to be applied in addition to and save as expressly provided otherwise in the Ordinance, not in derogation of the other laws. The reference to the other laws obviously included the Code of Civil Procedure which applies to trial of any proceedings of civil nature before Civil Courts. Indeed, the provisions of Order XXXVII in the First Schedule to the Code of Civil Procedure were incorporated by reference in the 1979-Ordinance under section 7 thereof. At that stage the Legislature considered it adequate to apply summary procedure to all the proceedings filed by Banking Companies for recovery of dues for attainment of the object of 1979-Ordinance. However, it seems that except for the specific provisions contained in the 1979-Ordinance, the cases under the 1979-Ordinance were intended to be regulated as civil proceedings for recovery of money. For eliminating delays involved in the civil proceedings and the cumbersome process of execution, finality was ascribed to the orders and judgments passed by the Special Banking Courts and the mode and forum of challenge thereto was also circumscribed. Section 11 of the 1979-Ordinance very clearly provides that an order, judgment or sentence of the Special Court can be challenged only in accordance with the provision contained in section 12 of the Ordinance which relates to appeals. It further seems that the grounds for appeal have been limited to what is contained in subsection (2) of section 12 of the 1979-Ordinance. Besides, any interlocutory order which does not dispose of the entire case, was made in appealable; and quite significantly, the ex parte orders were also made appealable. The question which needs to be examined is whether from the last-referred provision that an appeal could be preferred against an ex parte judgment or order, a negative command can be inferred that such judgment or order cannot be challenged through any other mode including an application for review or recall thereof by the same Special Banking Court. According to Mr. Sajid Zahid, the 1979-Ordinance being special legislation, Section 12(3) has to be interpreted as creating an exclusive mode of challenging ex parte judgment. The learned counsel, to substantiate his submission, has referred to the case of Pakistan Fisheries Ltd., Karachi and others v.
20. United Bank (PLD 1993 SC 109) wherein it is held that when remedy is prescribed by Special Law, the same should be considered exclusive. The relevant observations contained in the above-judgment are as follows:-- "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... ...
21. ' 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."
22. ' According to the learned counsel any other interpretation shall defeat the very intent of the Legislature and allow a weary borrower circumvent the provisions of the 1979 Ordinance. Reference has also been made to the principles of interpretation noted in the case of Islamia University, Bahawalpur v. Dr. Muhammad Khan Malik (PLD 1993 Lah. 141) which are as follows: "Before we proceed to dilate upon these questions we find it appropriate to restate four well-known principles of interpretation having decisive bearing on these questions. Firstly, it is an elementary rule of construction that the Court called upon to interpret any provision of statute needs to ascertain the intention of law-makers from the words used which must receive their literal, natural and ordinary meaning where the words are not defined in that statute. This is known as 'rule of litra legis'; secondly, if two constructions are possible then that construction should be adopted which is more reasonable or which will save it from invalidity or which will further the object of statute. This is known as 'principle of liberal construction/beneficial construction'; thirdly, a statute is to be interpreted as an organic whole giving effect to its various parts and trying to harmonise different provisions of it as much as possible. See Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Hague PLD 1963 SC 486 and Massu v. United Bank Ltd. 1990 MLD 2304; fourthly,..
23. ' According to the learned counsel for the plaintiff section 12 of 1979-Ordinance creates substantive rights by providing for the right of appeal whereas Order XXXVII having been incorporated by reference for the purpose of procedure alone must give way to the former provision which, in any case, being part of the special law would prevail over the provisions contained in Order XXXVII, Rule 4, C.P.C. Which is the general law of procedure applying to matters falling thereunder. Mr. Sajid Zahid has gone on to contend that the word 'may' used in section 12(3) of the 1979-Ordinance has to be read as 'shall' and treated to create a mandatory requirement of preferring appeal against an ex parte judgment or decision. The last contention of the learned counsel, I am afraid is too far- fetched since the suggestion is not free from serious problems which cannot be read into the law.
24. However, the arguments of the learned counsel for the plaintiff that notwithstanding the permissive language used in section 12(3) of the 1979-Ordinance, its reading along with section 11 of the Ordinance is clearly indicative of a negative command prohibiting resort to any other proceedings.
25. Although, as has been pointed out by Mr.Muneeb Akhtar, the Legislature unlike interlocutory matters has - chosen not to be used a provision couched in negative form to prohibit assailing an ex parte judgment or order except through an appeal preferred under section 12 of 1979- Ordinance, it is significant to note that an appeal could even otherwise be preferred against ex parte judgment or order. The learned counsel for the defendants has quite forcefully urged that the use of word may in section 12(3) of the 1979-Ordinance is suggestive of availability of powers under Order XXXVII, Rule 4, C.P.C. It is, however, an elementary principle of interpretation that every word and sentence used by the Legislature has to be given meaning and significance. I U9 In the matters tried under the Code of Civil Procedure an ex parte judgment or order can be challenged in appeal as well as through application preferred before the same Court. The ratio of the judgment in Pakistan Fisheries Ltd., Karachi v. United Bank Ltd (supra) to the present case with full force which I am bound to follow notwithstanding that the said case had arisen out of an interlocutory order. In relation to the matters tried under Order XXXVII, applications can be filed under Rule 4 thereof whereas in the cases tried otherwise, an application can be made by the defendant under Order IX, Rule 13, C.P.C. If same procedure was intended to be applied to the cases tried under the 1979- Ordinance, there was no necessity, as it appears, for promulgation of subsection (3) of section 12 of the Ordinance. The above aspect, viewed with the negative provision contained in section 11 of the 1979-Ordinance, does not leave much room for any other interpretation than holding that the remedy provided by section 12(3) of the 1979-Ordinance is exclusive in nature and forbids resort to any other procedure or mode for challenging ex parte judgments or orders. In my view, therefore, the provision contained in Order XXXVII, Rule 4, C_P.C. Is in conflict with section 11 read with section 12(3) of the 1979-Ordinance. The result is quite obvious and the latter provision being the special law, must prevail. The applications preferred under Order XXXVII, Rule 4, C.P.C. Therefore, fail being not maintainable.
26. Reverting to the 'provisions of section 12(2), C.P.C. Which has also been cited in the present applications, suffice to observe that the language of section 11 of the 1979-Ordinance attaches finality to the orders and judgments passed by Special Banking Court and lays down that no Court or Authority shall call in question or permit to be called in question any order or judgment passed under the Ordinance except through an appeal under section 12 thereof. The bar of jurisdiction contained in the above-referred section 11 equally applies to an application under section 12(2), C.P.C. It is true that any allegation of fraud, misrepresentation or want of jurisdiction in relation to validity of a judgment, decree or order is to be agitated before the very forum which has passed such judgment, decree or order under section 12(2), C.P.C. The Legislature in its own wisdom has circumscribed the grounds on which the judgments or orders passed by the Special Banking Court can be questioned. Such grounds are specifically enumerated in section 12(2) of the 1979- Ordinance. The prohibition contained in section 11 of the 1979-Ordinance, in my view, applies with equal force to the Special Banking Court itself which is not excluded from the words "no Court or other Authority' used in the said provision of law. I am mindful of the position that a suit cannot be decided on a date when it is not fixed for hearing and in the present case second publication of summons was never effected. The summons were published only once on 17-10-1989 in daily 'HURRIAT' which did not contain even description of the forum where the proceedings had been instituted. The reference to the alleged publication of summons for the second time on 17-10-1989 in the judgment dated 30-4-1990 was evidently erroneous but the record quite sufficiently shows that the defendants Nos.1 and 4 had gained knowledge about institution of the proceedings on 4- 10-1989 when the summons were refused to be accepted by the defendant No,4. The notice of Execution Application No,115 of 1991, in any event, was served on 15-2-1992 and the failure to prefer an appeal immediately thereafter has remained unexplained. The arguments of the learned counsel for the plaintiffs to the. Effect that the version put forward by the defendants about having come to know of the execution proceedings on 31-521992 through M. Farooq Tabani, being not free from doubts, cannot be ignored altogether. The reference to section 24 of the Partnership Act, notwithstanding the change allegedly undergone by the defendant No,1, is also relevant which is substantiated by the fact that information gained from M. Farooq about the execution proceedings was conveyed within no time to all the defendants who' are very closely related. In view of the dictum laid down in the case of Emirates Bank Limited v. Dost Muhammad Cotton Mills (1993 MLD 54) the close relationship between the defendants as well as their business relationship is significant and it can safely be assumed that every one of them knew about filing/pendency of the present proceedings. For such reasons, I am not inclined to ignore the technicalities in relation to maintainability of the present applications.
27. ' Consequently, all the applications under Order XXXVII, Rule 4 and section 12(2), C.P.C. Are dismissed being not maintainable.