This revision petition has been preferred by Chairman Agricultural Development Bank of Pakistan and others against the order and judgment of the learned District Judge Zilla Qazi, Alpuri Shangla, dated 26-2-1997, whereby he accepted the application for temporary injunction of the respondents.
2. The facts of the case are that Abdul Wadood and others respondents herein had filed a suit for declaration against Chairman Agricultural Development Bank of Pakistan etc. In the Court of Civil Judge/Illaqa Qazi Alpuri Shangla to the effect that he had availed a loan of Rs. 1,79,650 against mortgage of landed property vide Mutation No. 217 attested on 7-1-1987, that he had adjusted the loan amount to some extent and was ready to pay the remaining amount through instalments and that the respondents' Bank hereinafter petitioners were not entitled to recover interest/mark-up in addition to the principal amount as the same had been declared un-Islamic by the Federal Shariat Court and was against the spirit of Shariah Regulation (Nifaz-e-Nizam-e--Shariat Ordinance), 1994 promulgated in the area. Alongwith the suit an application for permanent injunction restraining the defendants not to recover the interest till the decision of the august Supreme Court of Pakistan Shariat Appellate Bench, was submitted. An application for temporary injunction was also filed along with the plaint.
3. The learned trial Court (Civil Judge/Illaqa Qazi) dismissed the application for temporary injunction moved by the plaintiffs vide his order dated 8-7-1996. Feeling aggrieved of the aforesaid order an appeal was preferred before the District Judge/Zilla Qazi which was accepted on 26-2- 1997. Not satisfied with the order of the appellate Court the defendants-petitioners preferred the present revision petition in this Court.
4. I have heard the learned counsel for the parties and gone through the record of the case with the assistance of the learned counsel for the parties.
5. Appeal against which the present petition has been filed was partially accepted vide the impugned order. The claim of the respondents before the learned Zilla Qazi was that since the Federal Shariat Court declared interest as prohibited and repugnant to the injunctions of Islam, therefore, they were not required to pay interest on the loan secured by them from the petitioner's Bank. PLD 1992 FSC page 1 is on the point and they were liable to pay the principal amount to the petitioners' Bank. The learned Zilla Qazi in the impugned order has observed that "since the Federal Government has moved an appeal against the decision of the Federal Shariat Court before the Supreme Court Shariat Appellate Bench and the same is pending adjudication, therefore, the respondents" Bank shall not realize the interest/mark-up from the plaintiff/appellants subject to the condition that the trial Court after recording evidence of the parties shall scrutinise the terms of the agreement between the parties and ascertain the correct amount payable to the Bank with interest/Mark--up and thereafter, calculate correct outstanding amount against them. It was also directed that during the pendency of the suit the plaintiff-respondents shall deposit outstanding instalments of the principal amount failing which the interim order passed against them dated 26- 2-1997 shall be treated as vacated. The appellants have themselves violated this order and the record suggests that ever since 29-6-1993 they have not paid the instalments regularly. The statement of account in respect of Abdul Wadood appellant has been produced in Court by the learned counsel for the appellants-respondents which is Exh.C.A. To Exh.C.A./2, according to which a sum of Rs.1,80,852 is outstanding against them. The learned counsel for the appellants pointed out that the Illaqa Qazi had consolidated similar applications for temporary injunction in Cases Nos.161/l, 271/1, 284/1, 285/1 and 354/1 and had passed a single order against all the matters on 8-7- 1997. The aggrieved persons thereafter, did not file any separate appeal against the aforesaid order but the learned Zilla Qazi in the memorandum of appeals have included the names of respondents 2 to 7, as parties to the present dispute without notice to the appellants. On this score alone the present revision petition is liable to be set aside. The learned counsel for the respondents was unable to prove the justification of the inclusion of respondents 2 to 7, as parties to the present litigation. It is important to mention here that the respondents had secured loan from the petitioners on the basis of mark-up in lieu of which whey have mortgaged their landed property and an agreement to this effect was also executed by the respondents in favour of the petitioners'
Bank in which a promise for the re-payment has been specifically made in accordance with the term as and conditions of the sanction. A similar matter was dealt with by the August Supreme Court of Pakistan in 1992 SCMR 2287 in which it was held that "since decision of the Federal Shariat Court has not attained finality and an appeal against the same was pending adjudication before the Shariat Appellate Bench of the Supreme Court, therefore, leave to appeal was dismissed.
Besides, the present matter pertains to the jurisdiction of Banking Tribunal N.-W.F.P., Peshawar as the said Tribunal specifically deals with the special law namely, Banking Company (Recovery of Loans) Ordinance, 1979. Reliance is placed on 1998 M LD 1351.
6. I need not dilate upon the question of jurisdiction of the civil Court at this stage because the matter is pending and subjudice before the proper forum. The present revision petition having merits is accepted and the impugned order, dated 26-2-1997 is set aside and the trial Court is directed to expeditiously dispose of the case within four months positively from the date of order this Court.
No order as to costs