1. By this single judgme: appeals as common law point is Brief relevant facts are 27-5-1980 filed several civil suits borrowers/defendants, under these suits amount involves wa per prevalent law at that time, were filed before the District Court. Amer proceedings the suits the learned District Judge Khairpur dismissed such suits vide its judgments dated 12-4-1983/7-5-1983 passed separately in each suit. Followed by preparation of decree in each case. In these appeals such judgments and decrees have been impugned before this Court.
2. At the very out set of his arguments Mr. S. All Aslam Jaffri, the learned counsel for the appellants had raised a point of law, that after the amendment in the Banking Companies (Recovery of Loans)
3. Ordinance, (XIX of 1979), through amending Ordinance II of 1983 w,e,f, 30th January 1983, whereby clause (a) of subsection (2) of section 6 of Ordinance, 1979 was omitted. The learned District Judge was not left with the jurisdiction to proceed with pending cases and the cases should have been transferred to the Special Court constituted under the said Ordinance of 1979, for further proceedings in accordance with the law. The learned counsel in support of his arguments referred section 6 of Banking Companies (Recovery of Loans) Ordinance, 1979 which reads as follows:--
6. Powers of Special Court.---(1) A Special Court shall--
(a) in the exercise of its civil jurisdiction, have, in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a Civil Court under the Code of Civil Procedure, (Act V of 1908); (b)
(c) ......... {{PAGE CUT IN BOOK}} Digest rrisdic. Ng contained in subsection (1), a Special Cour risdiction in a case in which--- amount of the loan not exceeding one la proceedings in respect of the loan are pending before a ; or e loan was sanctioned under an agreement between the bankin; company and the borrower which provides for a dispute between th parties being referred to arbitration.
(3) .............
4. ' No Court other than a Special Court shall have or exercise an: jurisdiction with respect to any matter: to which the jurisdiction, of Special Court extends under this Ordinance, including a decision as t the existence or otherwise of a loan and the execution of a decree passe by a Special Court; and all proceedings, including proceeding following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, 1): , whatever Court passed, which may be pending in any Cow immediately before the commencing day shall stand transferred to th Special Court;
(5) ......................
5. ' The learned' counsel also referred section 5 of Banking Companie (Recovery of Loans)
6. (Amendment) Ordinance II of 1983 which reads a follows: 5, Amendment of section 6, Ordinance XIX of 1979.--in the sai Ordinance, in section 6---
(a) in subsection (1), in clause (b),--
(i) for words "an Assistant Sessions Judge" the "section" shall 1 substituted;
(ii) the first proviso shall be omitted; and
(iii) in the second proviso, the word "further" shall be omitted; (b) in subsection (2), clause (a) shall be omitted; and
(c) in subsection (4), for the full-stop at the end a colon shall be substitut and thereafter, the following proviso shall be added and shall deemed always to have been so added, namely - ' Provided that nothing in this subsection shall be deemed to affect---
(a) the right of a banking company to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or
(b) the jurisdiction of any Court such as is referred to in clause (a), or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day."
7. ' In support of his arguments and with reference to the above legal position the learned counsel cited the following case-law:
(i) Mst. Yasmeen Nighat v. National Bank of Pakistan (PLD 1984 Pesh. 188),
(ii) Civil Reference by District Judge, Karachi (1985 CLC 718).
8. I have considered the contention of the learned counsel and have perused the case-law.
9. ' In the case of Mst. Yasmeen Nighat v. National Bank of Pakistan (PLD 1984 Pesh. 188), A Division Bench while examining the affect of amending Ordinance II of 1983 observed that the same will also affect the pending cases and that by omission of clause (a) of subsection (2) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 the forum of the Civil Courts for the trial of such cases ceased to exist and it would preposterous to think that the suit pending in the civil Court could still be tried by them even when they had ceased to exercise jurisdiction in respect of the case.
10. ' In the reference made by the learned District Judge, Karachi, (1985 CLC 718), Hon'ble Single Judge of this Court also took a similar view of the matter and observed that after the amendment in Banking Companies (Recovery of Loans) Ordinance, 1979 and the omission of clause (a) of subsection (2) of section 6 of the said Ordinance of 1979 the pending cases before the District Judge will be transferred to the Presiding Officer, Special Court constituted under the same Ordinance.
11. ' In another decision reported as Mst. Yasmeen Nighat v. National Bank of Pakistan (PLD 1988 SC 391) the Hon'ble, Supreme Court of Pakistan was pleased to approve the view taken by the 'Division Bench of Peshawar High Court, which was challenged in the said petition. The relevant observations are as under:-- ' "The situation in the present eases is similar and as there is no contrary indication in Ordinance II of 1983 we are of the opinion; therefore, that in the present cases too the amending Ordinance (II of 1983) would affect the pending proceedings and all the suits would have to be tried by the Special Court.
12. ' It may be added that an examination of the provisions of Ordinance XIX of 1979 in juxtaposition with those of Ordinance II of 1983 shows that the legislature by enacting section 6 (4) of Ordinance XIX of 1979 intended to oust the jurisdiction of all other Courts in the matter of banking loans and to confer exclusive jurisdiction on Special Courts in respect of the matters which were made triable by the said Courts, under the terms of the said Ordinance and all such proceedings pending in any Court immediately before the commencing day of Ordinance XIX of 1979 stood transferred to the Special Court concerned. Under the provisions of the said Ordinance XIX of 1979 (under section 6
(2) (a) the jurisdiction of the Special Court was expressly excluded in relation to cases involving a sum of Rs, one lac or less. But by Ordinance II of 1983, the definition of the Special Court having been amended and subsection (2) (a) of section 6 of Ordinance XIX of 1979 having been omitted, the Special Court established under section 5 (1) of the Ordinance become vested with the jurisdiction to try those cases which were specially excluded from its jurisdiction under section 6 (2)
(a) of Ordinance XIX of 1979. As a result of this extension, the Special Court was conferred the sole jurisdiction in such matters (the jurisdiction of all other Courts having been ousted in respect of such cases). The intendment of the law-maker which appears from the changes made by him, is that he intended that even such cases which under section 6 (4) of the Ordinance were to be tried by the Civil Courts earlier were also to become triable by the Special Courts. This intention is also decipherable from the circumstance that with the omission of clause (a) of subsection (2) of section 6 of Ordinance XIX of 1979 the forum of the Civil Courts for the trial of such cases ceased altogether. Hence. It will not be reasonable to infer that the suits pending in the Civil Courts can continue to be tried by them, when their jurisdiction in respect of these cases has been completely taken away."
13. Examining the facts of present appeals, with reference to the case-law as laid down by the Hon'ble Supreme Court of Pakistan and discussed above, it is clear that on 12-4-1983/7-5-1983 when the learned District Judge Khairpur proceeded and disposed of the suits by the impugned judgments, he had no jurisdiction to proceed with these cases as w,e,f, 30th January, 1983 (after the amendment in the Banking Companies (Recovery of Loans) Ordinance) such jurisdiction exclusively vested to the Special Court constituted under the said Ordinance XIX of 1979. Thus, after the amendment in law the only course available to the learned District Judge Khaipur was to transfer these cases to the concerned Special Court.
14. ' As a necessary corollary of above, these appeals are allowed. The impugned judgments and decrees passed by the trial Court are set aside. The cases are remanded to the Court of District Judge Khaipur with directions that the same may be transferred to the concerned Special Court, established under the Banking Companies (Recovery of Loans) Ordinance, 1979, for disposal according to law.