1. ' This application has been filed under section 151, C.P.C. For recall of order, dated 17-4-1998 dismissing the application of defendants Nos.1 to 4 for leave to defend for want of prosecution and for setting aside the subsequent orders passed in the above matter. It is stated in the supporting affidavit by the learned counsel himself that he had two matters before the Division Bench on that day at serial Nos.14 and 18. The matter at serial No,14 was taken up at 10-00 a.m. And at about 10-15 a.m. He came to know about the order passed by me on that date dismissing the application for leave to defend. This application was filed on the very day but on an objection raised by the office, reference to Order IX, Rule 9, C.P.C., was also included in its title. Alongwith the application, Mr. M.L. Shahani has filed his Vakalatnama on behalf of defendant No, 1 . On 19-5-1998 Vakalatnama has been filed by Mr. M.L. Shahani on behalf of the defendants Nos.2 to 4 as well.
2. ' In support of this application, it is urged by Mr. Shahani that under section 7 of Act XV of 1997, all the powers vesting in a Civil Court have been conferred upon this Court while exercising jurisdiction 'under the said Act. Even with regard to the procedure, it is urged that this Court is required to follow the provisions contained in C.P.C. The power to recall the order dismissing the application for leave to defend or for setting aside the decree passed consequentially, according to the learned counsel, is available under Order IX, Rules 9 and 13, C.P.C. Which would continue to apply notwithstanding the provisions contained in sections 21 and 27 of Act XV of 1997. The learned counsel has pointed out distinction between procedural review and substantive review to contend that the power to set aside dismissal in default is merely a procedural review which remains available to a Court or Tribunal notwithstanding non-conferment of powers enjoyable under Order 47, C.P.C. It is submitted by Shahani that the provisions of sections 21 and 27 merely exclude exercise of review under Order 47, C.P.C. And the present application which ought to be treated as one under Order XXXVII, Rule 4, C.P,C. Is not barred by any provisions of Act XV of 1997 and, therefore, this Court can validly recall the order, dated 17-4-1998 and sent aside the decree consequently, passed in the proceedings.
3. ' In reply Mr. Azizur Rehman, Advocate appearing for the plaintiff submits that by virtue of sections 21 and 27 of Act XV of 1997, the present application is not maintainable. The learned counsel has further referred to the provisions contained in sections 11 and 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 and has contended that upon consideration of such provisions which are in para materia with sections 21 and 27 of Act XV of 1997, applications for review have consistently been declined by the superior Courts of this country. By reference to the case of Reference No,1 of 1988 made by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan PLD 1989 SC 75, the learned counsel for the plaintiff has urged that the things required by law to be done in a particular manner must be performed in such manner alone.
4. ' For proper adjudication of the questions raised, as above, the relevant provisions of Act XV of 1997 may be reproduced hereunder:-- "3. Act not to derogate from other Laws.--- The provisions of this Act shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force."
5. "7. Powers of Banking Courts.--- (1) Subject to the provisions of this Act, a Banking Court shall---
(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);
(b) ......................................................
(2) A Banking Court shall in all matters with respect to which procedure has not been provided for in this Act, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908) and the Code of Criminal Procedure, 1898 (Act V of 1898)."
6. "21. Appeal,- (1) Subject to subsection (2), any person aggrieved by a decree, or an order refusing to set aside a decree, or an order permitting or preferring the sale of property, or a sentence passed by a Banking Court established under section 4 may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court; ' Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the appellant deposits in cash with the High Court an amount equivalent to the amount due, or, at the discretion of the High Court, furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decretal amount only the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly; ' Provided further that where the claim of the decree-holder is based on the default of the defendant in payment of agreed instalments, the deposit shall be made or, as the case may be, the security furnished to the extent of the amount of instalments in default. (2)
7. (3)
(4) An appeal may be preferred under this section from a decree passed ex parte.
8. (5).....................................
9. "27. Finality of order.--- Subject to the provisions of appeal, no Court or other authority shall revise or review or call, or permit to be called, in question any proceeding, order, judgment, decree or sentence of a Banking Court or the Banking Mohtasib or the legality or propriety of anything done or intended to be done by the Banking Court of the Banking Mohtasib under this Act."
10. ' According to Mr. M.L. Shahani the conferment of all the powers exercisable by a Civil Court would include power to set aside decree and to recall order of dismissal in default. On such basis it is urged that refusal to exercise power under Order IX, Rule 13 or under Order XXXVII, Rule 4, C.P.C. Shall amount to attributing redundancy to the Legislature who has chosen to make the Code of Civil Procedure applicable in its entirety to the proceedings before this Court. This argument by the learned counsel for the defendant however, appears to have been advanced without appreciating the language contained in section 7(2) of Act XV of 1997 which provides that the Banking Court shall follow the procedure laid down in C.P.C. With respect to which the procedure has not been provided for in this Act. It means that whenever any provision about procedure for trial has been made A in Act XV of 1997, the same shall have overriding effect and the procedure prescribed under the Code of Civil Procedure shall stand excluded to the above extent. It is not necessary for further application of the above aspect that conflict in clear terms must be found to exist. It is elementary that where an enactment specifies a remedy, such a. Remedy has to be considered exclusive and the party aggrieved by an order made in exercise of the special jurisdiction must seek only such remedy and no other. Similar situation had arisen in Suit No,67 of 1987 in which I had dismissed application for grant of leave filed by one of the parties and had proceeded to decree the suit. Then dealing with an application whereby the order passed on the application for leave to defend was sought to be recalled, by order, dated 24-4-1998, it was held by me that the application, for recall of order dismissing an application for grant of leave and for setting aside decree in the suit, amounted to exercising the power of review and the same could not be invoked unless specifically conferred by law. The opinion expressed by me in the above-referred order is reproduced below:-- "It is true that the power to rectify an apparent error is always exercisable by any judicial or quasi- judicial authority and even an executive forum. Such power can be exercised on the basis of the principle contained in section 14 of the General Clauses Act whereby any authority or forum possessing power to do something is invested with the general power of undoing and redoing such Act. Reference in this behalf has also been made to the provisions contained in section 7 of the Act where under except otherwise provided by the provisions of Act XV of 1997 a Court has been invested with all the powers exercisable by a Civil Court in discharge of its civil jurisdiction and is required to follow the procedure prescribed under the Code of Civil Procedure. It has been urged on such analogy that the provisions contained in section 21 having not prescribed any prohibition against exercise of power of review. Order XLVII, C.P.C. Can lawfully be invoked. However, it has also to be kept in view that the power of review or appeal creates a substantive right and cannot be inferred unless there is a specific provisions enabling the Court to exercise such authority I am supported in this view by judgment in Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109 containing the following dictum-- ' The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a Special Court as defined in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised an 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, The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the Legislature'.
11. ' The law has prescribed a particular forum and no matter how ' strongly the defendant feels about the order passed by me, an application for review cannot be maintained."
12. ' Same view was expressed by me in the order, dated 13th April, 1998 passed in Suit No,1032 of 1989.
13. Indeed, in the last mentioned case, the decree had been passed under the provisions of the Banking Companies (Recovery of Loans Ordinance, 1979 and the applications had been filed by the defendants under Order XXXVII, Rule 4, C.P.C. Even in the present case, it is pertinent to mention that Mr. M.L. Shahani, during his arguments, has very candidly stated that the application filed by him be treated as one under Order XXXVII, Rule 4, C.P.C. Which was the only provision according to Mr. M.L.
14. Shahani for making application in the given circumstances.
15. ' Much was said on behalf of the defendants about distinction between the procedural review and substantive review. Reference in this behalf was made to the case of Grindlays Bank Limited v.
16. Central Government . Industrial Tribunal and others of the Supreme Court of India reported in 1985 PSC 21. In the cited case, the Central Government Industrial Tribunal constituted under the Industrial Disputes Act, 1947 had set aside an ex parte award on being satisfied that there was sufficient cause within the meaning of Order IX, Rule 13: C.P.C. The order passed by the Tribunal was challenged, amongst others, on the ground that the Industrial Disputes Act and Rules framed thereunder do no confer any power upon the Tribunal to set aside an ex parte order. The distinction was sought to be, drawn between an application for review and an application for setting aside an ex parte award. While dealing with such contention, the opinion expressed by the Court was as follows:-- "6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the. Act to the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well-known rule of statutory' construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary."
17. In the same case it was further held that expression "review" is used in two distinct senses namely
(1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably an erroneous order passed under misapprehension, and (2) a review on merits when the errors sought to be corrected is of facts or of law and is apparent on the face of record. It is, however, to be borne in my mind. That the power of review is C not an inherent power and must be based on specific conferment by the law. The distinguishing feature in the above-referred case, cited quite vociferously by Mr. Shahani, is that under the Industrial Disputes Act there is no provision whereby review of an order passed by the Tribunal is prohibited. The argument against the exercise of power for setting aside ex parte order was pressed merely on the ground that the power of review as not specifically conferred on the Tribunal. In the present case, however, the Banking Law contains specific provision prohibiting the power of review. Such prohibition in my humble view, would include procedural as well as substantive review and no exception can be taken in this behalf. Reference has similarly been made to the case of Sami Pharmaceuticals Ltd. v. Sindh Labour Appellate Tribunal and 3 others 1985 PLC 754 wherein it was found by a Division Bench of this Court that the suo motu revisionat jurisdiction contained in subsection (3-A) of section 38 of the Industrial Relations Ordinance,. 1969 gives ample power to the Labour Appellate Tribunal to rectify miscarriage of justice in a fit case without any constraint whatsoever. While no cavil can be had to the dictum laid down in the above-referred case of Sami Pharmaceuticals Ltd., the negative clause contained in section 27 of Act XV of 1997 has to lie given full effect in the present case which does not leave any room for exercise of powers under Order IX, Rule 13, C.P.C. Or under Order XXXVII, Rule 4, C.P.C. In the present case. Such aspect has been considered by me in the order, dated 13th April, 1998 passed in Suit No,1032 of 1989 wherein I have expressed the following opinion:-- "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."
18. ' The above view is supported by the judgment of Honourable Supreme Court in the case of Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 wherein while considering the effect of section 10 of the Banking Tribunal Ordinance, 1984 the following dictum was laid:-- "12. Last but not the least, under section 10 and subject to the provisions of appeal under section 9 of the first Ordinance, no Court or other authority is competent to call or permit to be called in question any proceeding, order, judgment or decree of a Banking Tribunal or the legality or propriety of anything done or intended to be done by the Banking Tribunal thereunder. The writ petition was, therefore, not competent."
19. ' It is pertinent to mention that the language of section 10 of the Banking Tribunals Ordinance, 1984 is akin to that contained in section 27 of Act XV of 1997.
20. In the circumstances, I do not find any justification to deviate from the view expressed by me earlier in Suit No,67 of 1987 and Suit No,1032 of E 1989 and hold that the present application cannot be entertained by this Court and is liable to be dismissed as such.
21. ' Before parting, I find it necessary to mention that on 17-4-1998 when the application for leave to defend was dismissed for non-prosecution, sufficient opportunity was provided to the defendants to present their case. Mr. Ahmed Saeed who was appearing for the said defendants and whose power still continues, was present and had requested for keeping the matter aside on the ground that Mr. Shahani intended to file power on behalf of the said defendants and was busy before a Division Bench of this Court. The matter was taken up thrice on that day and the application was dismissed for non-prosecution during third call. The learned counsel for the defendants namely Mr. Ahmed Saeed who was present had been called upon to argue the matter but he had declined to make any submission in support of the application. In such situation, I was left with no option but to dismiss the application for non-prosecution. Admittedly, Mr. Shahani till that time was merely waiting for his case to be taken up before the Division Bench. The learned counsel who are engaged by the parties can, in all fairness, expect accommodation, the indulgence shown by the Court cannot be misused and a counsel while waiting for his case to be taken up by one Bench cannot on the ground of such engagement seek an order for keeping matter before another Bench aside or ask for adjournment. The Bar is equally responsible to come out reasonably for coping with the mounting pendency of cases. The refusal by Mr. Ahmed Saeed to proceed with the matter on 17-4-1998 and the request for keeping the matter aside at a time when Mr. Shahani was not actually busy before another Bench was, in the circumstances, not justified at all.
22. ' The application, in the circumstances, is dismissed.