1. ' The above four Revision Applications have been filed against the judgment and decree, dated 1- 8-1994 and 22-8-1994 respectively of the District Judge, Hyderabad, whereby he confirmed the orders of the Trial Court, dated 25-5-1994 in the four suits, pertaining to the aforesaid Revision Applications, rejecting the plaint under Order 7, Rule 11, C.P.C.
2. ' The brief facts of the case are that the applicants who are agriculturists and holding agricultural land in District Hyderabad, were allowed loan facilities in 1983, 1984 and 1985 at simple interest. The principal amount of the loans was refused by the applicants but the respondents did not furnish any statements of accounts to them. Subsequently respondent No,2 acting as Assistant Collector in view of the provisions of the Land Revenue Act, served a notice on the applicants under section 81/82 for recovery of the amounts mentioned therein against each of the aforesaid applicants, failing which coercive measures were to be taken against them for recovery of the said amounts.
3. The applicants further stated that the amounts mentioned in the aforesaid notices were not outstanding against the applicants and such notices were illegal, void, mala fide and without any lawful authority and the applicants had no option but to file a suit for declaration that the aforesaid notices were illegal, void, mala fide and without any lawful authority and for permanent injunction, restraining the respondents from implementing the aforesaid notices and taking recourse to coercive measures for recovery of the amounts mentioned therein. Alongwith the plaint the applicants had also filed an application under Order 39, Rules 1 and 2, C.P.C., duly supported by their affidavits, praying for temporary injunction against the respondents restraining them from initiating coercive measures to recover the amounts mentioned in the notices.
4. ' The respondents were duly served with the summons and filed applications under Order 7, Rules 10 and 11, C.P.C., in all the four suits, praying for return/rejection of the plaint, on the grounds that the Trial Court had no jurisdiction to entertain the suits, that the plaint did not disclose any cause of action, that the suits were barred under the provisions of law and that the suits were undervalued and were not properly stamped. The Trial Court after hearing the arguments of the learned counsel for the parties on the applications under Order 7, Rules 10 and 11, C.P.C. And Order 39, Rules 1 and 2, C.P.C., allowed the application under Order 7, Rules 10 and 11, C.P.C., rejecting the plaint and dismissed the application under Order 39, Rules 1 and 2, C.P.C. Feeling aggrieved and dissatisfied with the aforesaid order of the Trial Court, the applicants filed appeals in the Court of District Judge, Hyderabad, who by his consolidated impugned judgment upheld the orders of the Trial Court and confirmed the rejection of the plaints filed by the applicants. The applicants again feeling aggrieved and dissatisfied with the judgment and decree of the appellate Court, challenged the same by way of above four Revision Applications.
5. ' I have heard the arguments of Mr. Jhamat Jethanand, learned counsel for the applicants and Mr. Syed Jehangir Shah, learned counsel for the respondents and have also perused the law relevant for the disposal of the aforesaid four Revision Applications as well as the case-law relied upon by the learned counsel for the parties in support pf their respective contentions.
6. ' Mr. Jhamat Jethanand, learned counsel for the applicants has challenged the validity and legality of the notices issued by respondent No,2, on the grounds; firstly, that the notices were issued without providing an opportunity of hearing to the applicants, thereby depriving the applicants of the right of natural justice of being heard before any adverse orders were taken against them; and secondly, that the respondents did not follow the procedure laid down in the Agricultural Development Bank Ordinance, 1961 as well as the procedure provided in the Land Revenue Act for declaring the dues as "legal dues" and "recoverable dues" and without determination by a lawful authority whether the amounts shown in the aforesaid notices were due or not. Alternatively Mr. Jhamat Jethanand submitted that if both the above contentions raised by him, on which he has attached the impugned judgment and decree do not find favour and are not accepted, then, his contention is that the two Courts below committed an irregularity/illegality in ordering rejection of the plaint and the proper course for them was to have ordered return of the plaint for presentation in a Court having jurisdiction to entertain the suit filed by the applicants once they had held that the jurisdiction of the Civil Court to entertain and proceed with the aforesaid suit was barred.
7. ' In support of his first proposition he has placed reliance on the case of Mst. Anisa Rehman v.
8. Pakistan International Airlines Corporation and others reported in 1994 SCMR 2232. In support of his second contention he placed reliance on the cases of: (1) M/s. Agricultural Development Bank v.
9. Sanaullah, reported in PLD 1988 SC 67; and (2) Muhammad Akber v. The Province of West Pakistan, reported in 1984 SCMR 1047. In support of his third proposition he placed reliance on the case of M/s. Crain Systems (Pvt.) Ltd. And 10 others v. Agricultural Development Bank, reported in 1993 SCMR 1996.
10. ' Mr. S. Jehangir Hussain Shah, learned counsel for the respondents on the other hand submitted that by virtue of section 6(4) of the repealed Banking Companies (Recovery of Loans) Ordinance', 1979, which was in the field at the relevant time and which now stands repealed and replaced by the Banking Companies (Recovery of Loans, Advances, Credit and Finance) Act, 1997, (hereafter referred to as the Act) the jurisdiction of the Courts to question any issue touching or relating to the recovery of any loan, advance, credit or finance facility sanctioned or allowed by a banking company is completely barred and the same vests solely in the Tribunal constituted under the aforesaid repealed Ordinance and which continue to exist and function under the said Act. He further submitted that in view of the above legal position the Trial Court had no jurisdiction to entertain and proceed with the suits filed by the applicant as they pertained to the question touching or relating to the recovery of outstanding loans granted to the applicants by respondent No,1, which was a Banking Company within the definition of the repealed Banking Companies Ordinance and is such under the Act of 1997 and both the Courts below had rightly concluded that the jurisdiction of the Civil Courts to entertain and proceed with the above suits was barred. With regard to the contention raised by Mr. Jhamat Jethanand, he submitted that on the failure of the respondents to issue a notice for associating them for the purpose of determination of the amount as "legal dues", and/or "recoverable dues" without taking recourse to the procedure provided in the Land Revenue Act for determining the amount due and payable, it cannot be said that the applicants were deprived of their right of hearing for such determination/declaration inasmuch as the applicants would have been served with the notices by respondent No,2 before proceeding to recover the dues as arrears of the Land Revenue and applicants would have been provided ample opportunity of contesting the matter and agitating that the amounts mentioned in the notices were not legal dues and payable by them.
11. Taking into consideration the propositions advanced by Mr. Jhamat Jethanand that neither the respondents had resorted to any proceedings for determining whether there was any amount due and recoverable as arrears of land revenue from the applicants nor the respondents called upon the applicants to participate or associated them with the said proceedings or enquiry it is to be observed that the action of the respondents in not providing an opportunity to the applicants to associate them with the proceedings or the enquiry which was to be undertaken for determining as to whether any amount was due and recoverable from them as arrears of land revenue amounted to violation of the principle of natural justice and depriving them to question the correctness of the amounts or liabilities shown to be outstanding against them in the notices issued to them. The contention of Mr. S. Jehangir Hussain Shah, learned counsel for the respondents that no prejudice had been caused to the applicant in not allowing them an opportunity to participate and partake in the proceedings for determining as to whether any amount was due from them and the correctness thereof in view of the fact that the amount recoverable from the applicants pertains to a loan granted by respondent No,1, which is a Banking Company, and maintains books of accounts in the form of cash books, ledgers, folios, etc., wherein all the credit and debit entries are entered in respect of each and every transaction which gives a clear and true picture of the position of the accountholder on the basis of which a statement of account is prepared and the entries of such statement of account are prima facie accepted to be correct. He further submitted that the above proceedings do not require the presence or association of the account-holder for determining whether any amount is due and payable by him to the Bank in his account. He contended that the applicants admittedly are the account-holders and were allowed loan facilities by respondent No,1 but did not repay the same and after verification of the books of accounts pertaining to the account of the aforesaid applicants, respondent No,1 had prepared statements of accounts of each of the applicants showing the amount due from them. The contentions advanced by Mr. S. Jehangir Shah are not helpful to him in overcoming the failure of the respondents to provide an opportunity to the applicants for associating them for determination of the amount due and for correctness thereof in view of the dicta of the hon'ble Supreme Court of Pakistan in the cases of: (1) Messrs Agricultural Development Bank of Pakistan v. Sanaullah Khan and others, reported in PLD 1988 SC 67; and (2) Muhammad Akber v. The Province of West Pakistan, reported in 1984 SCMR 1047. In the first cited case which also pertains to M//s. Agricultural Development Bank of Pakistan, who are the applicants hereinabove, their Lordships of the Supreme Court were pleased to hold that the machinery provisions of West Pakistan Land Revenue Act, 1967 for the realisation of amount as arrears of land revenue under section 25 of the Ordinance could only be invoked after the procedure for determination of arrears due is adopted and duly certified and in the absence of such a certificate the person concerned, without being given an opportunity of hearing, would not be a defaulter within the meaning of law.
12. In the second cited case their lordships of the Supreme Court of Pakistan were pleased to express similar views and reiterated that the machinery provisions of the Land Revenue Act could only be set into motion after claim had actually ripened into "dues" and determined on basis of some adjudication in accordance with law and justice. The material on record does not disclose whether the respondents before issuing the impugned notices to the applicants had undertaken and resorted to proceedings for adjudication and/or determination whether there were "dues" recoverable from the applicants. There is also nothing on record to indicate that in such procedure or adjudication for determining and ascertaining the amount recoverable as "dues" the applicants were present and associated, least to say of issuance of the certificates by the respondents to all the applicants of having been given an opportunity of hearing before determining the amount as "dues" and ascertainment of the said amount.
13. Deprivation of an opportunity of being heard by any authority before passing an adverse order amounts to violation of the principle of natural justice and has been equated with the violation of fundamental right as per dicta of the Supreme Court of Pakistan in the case of Mrs. Anisa Rehman v. M/s. P.I.A.C. And others, supra. Mr. Jhamat Jethanand, learned counsel for the applicants has also referred me to the case of M. Latif v. Province of W.P., reported in PLD 1970 SC 180 in support of his contention that where an order is passed without authority or is illegal and/or void on account of it having been passed without affording an opportunity of hearing to the aggrieved party then the aggrieved party would have right to invoke the jurisdiction of the Civil Court to challenge such an order. There is no dispute with the proposition that when an order is passed in disregard of the principle of natural justice of providing an opportunity of being heard, then, such an order is a nullity and can be challenged by the aggrieved party. However, the question to be determined is whether the action of the respondent No,1 in issuing the impugned notices for recovery of the amounts mentioned therein from the applicants as arrears of land revenue could be challenged before the Civil Court or that its jurisdiction to entertain a suit to question the legality and validity of the impugned notices was barred as submitted by Mr. S. Jehangir Shah in view of the categorical and unequivocal provisions contained in the repealed Banking Companies (Recovery of Loans)
14. Ordinance and in the said Act ousting the jurisdiction of the Civil Court from entertaining and adjudicating upon any suit or proceeding relating to or touching any issue pertaining to recovery of the amount advanced by way of loan by a banking company to a borrower. Mr. S. Jehangir Hussain Shah in support of his above submission has placed reliance on the case of Muhammad Nazir Afandi v. Industrial Development Bank of Pakistan, Karachi and others, reported in PLD 1992 Peshawar 87 and submitted that the views expressed in the aforecited case are that of the jurisdiction of the Civil Courts to entertain and adjudicate upon any dispute between the aforesaid parties is completely barred and that the Civil Court would have no jurisdiction to entertain the suits filed by the applicants as their jurisdiction has been held to be barred and the Special Courts constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979, repealed and replaced by the Banking Companies (Recovery of Loan, Credit, Finance) Act, 1997, would have all the powers vested in a Civil Court under the Civil Procedure Code in respect of all the issues and disputes arising out of a loan given by a Banking Company to a borrower.
15. ' I have gone through the case of Muhammad Nazir Afandi v. I.D.B.P. (supra) wherein a learned Division Bench of the Peshawar High Court faced with a similar issue as is involved in the aforesaid Revision Applications, after taking into consideration section 6 of the repealed Ordinance concluded that the Special Courts constituted under the abovesaid repealed Ordinance, which has been repealed and replaced by the Banking Companies Recovery of Loans, Advances, Credit and Finance) Act, would be equally competent to grant relief claimed by the applicants in their suits filed in the Civil Courts. In coming to the above conclusion the learned D.B. Of the Peshawar High Court had made special reference to clauses (a) and (c) of subsection (1) of section 6 and subsection (4) of section 6 of the repealed Ordinance, which correspond to clauses (a) and (c) of subsection (1) of section 7 and subsection (4) of section 7 of the Banking Companies (Recovery of Loans, Credit and Finance) Act which is now in the field. In the case before the learned D.B. Of the Peshawar High Court the Trial Court had returned the plaint for filing it in a proper Court and the above order was upheld by the Appellate Court and the orders of the two Courts below were held to be unexceptionable as the issues pertained to the matters between a Banking Company and a borrower and were within exclusive jurisdiction of a Special Banking Court.
16. In view of the above discussions, the finding of the two Courts below that the Civil Court had no jurisdiction to entertain and adjudicate upon the suits filed by the applicants does not require to be interfered with but their findings ordering rejection of the plaint cannot be sustained and they are modified to the effect that the plaints filed by the applicants are to be returned to them for filing in Special Court, having jurisdiction to entertain and adjudicate upon the issues and disputes involved therein.
17. ' The aforesaid Revision Applications stand disposed of with the above modification.