MALIK MUHAMMAD QAYYUM, J. - This judgment shall dispose of R.A. Nos. 1-B/99, 6-B/98, 8-B/98, 9- B/98, 10- B/98, 2-B/98 and C.M. 49/B/95 in C.O.S. 25/1990 filed by the petitioners seeking review of the orders, judgments and decrees passed by this Court as Banking Court.
2. A preliminary objection as to the maintainability of these petitions has been raised by the learned counsel for the respondents/plaintiffs on the premises that the Special Court has no power of review and as such these applications were liable to be dismissed on this ground alone.
3. 0n behalf of the petitioners the arguments in main were addressed by Mr. Muhammad Akram Sheikh, Advocate while on behalf of the respondents Mr. AM Zafar, Advocate addressed the Court.
4. Learned counsel for the petitioners has contended that this Court though acting as a Special Court still remains to be the High Court and as such the provisions of Order 47 of Code of Civil Procedure are applicable, in the alternative it has been contended that Section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 confers on the Banking Court all powers which are vested in a Civil Court under the Code of Civil Procedure which includes the power to review. Mr. Muhammad Akram Sheikh, Advocate vehemently argued that according to the Islamic Jurisprudence the Court is not only entitled but is under an obligation to review the order if it is found to be defective.
5. 0n the other hand learned counsel for the respondents pointed out that there is no provision in the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 for review of the judgments, decrees or orders passed by the Banking Court. He maintained that right of review like a right of appeal is substantive in nature and must be expressly conferred upon a Court or authority, in support of their respective contentions various cases were cited by both the learned counsel who I must state have worked with great industry and their valuable assistance deserves to be acknowledged.
6. The first question which arises is as to whether while hearing the cases under Banking jurisdiction this Court acts as a Special Court or as the High Court. The answer to this question is not difficult.
Section 4 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 authorises the Federal Government to establish as many Banking Courts as it considers necessary to exercise jurisdiction in respect of the cases covered by Section 2 (b)(i) and appoint a Judge for each of such Courts. According to Section 2 (b) of the Act Banking Court means:-
(i) in respect of a case in which the outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or the trial of offences under this Act, the Court established under Section 4; and
(ii) in respect of any other case, the High Court.
Under Section 5 of the Act, the Chief Justice of each High Court has the power to nominate one or more Judges to exercise jurisdiction in respect of the cases hereunder. A perusal of various provisions of the Act shows that at all places the words used by the legislature are the Banking Court, it follows therefore, that the High Court while hearing the cases under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 acts as a Banking Court and not the High Court. Section 21 provides that any person aggrieved by a decree, or an ing to set aside a decree, or an order permitting or preventing the sale of property, or a sentence passed by a Banking Court established under Section 4 may, within 30 days of such order, decree or sentence, prefer an appeal to the High Court. If the argument of the learned counsel for the petitioners were to be accepted the provisions of Section 21 (i) would become redundant in the sense that if the decree has been passed by the High Court, no appeal would lie to the High Court itself.
Consequently, while disposing of cases under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the nominated Judge of the High Court acts as the Banking Court, it may also be mentioned that Section 7 of the Act confers the powers of Civil Court on Banking Court. If the Banking Court was acting as High Court, there was no need of such a provision.
7. It is pertinent to refer to the case of Valuegold Ltd. V. United Bank Limited (PLD 1999 Karachi 1) in which it was observed as follows:- "The term "original civil jurisdiction" signifies identified class of cases and does not include the cases entertained as Special Court under Section 2 (b) of Act XV of 1997. This Court, therefore, while hearing matters under Act XV of 1997 does not act as High Court in exercise of its original civil jurisdiction but as a Special Court set up under the said Act."
The learned Judge went on to observe:- "The jurisdiction under Act XV of 1997 evidently is exercised by this Court as the Banking Court created under the said law. The powers of this Court as a Banking Court and the procedure for hearing cases is separately provided under the said Act and the Code of Civil Procedure applies only to the extent of matters not provided by the Act. The question about nature of jurisdiction exercised under Special Laws in contradistinction to the original civil jurisdiction was examined in- depth in the case of Pakistan Fisheries Limited v. U.B.L. (PLD 1993 S.C. 109)."
8. In Pakistan Fisheries Limited v. U.B.L. (PLD 1993 S.C. 109), it was observed that while exercising jurisdiction under the Banking Laws, the High Court bears the fictional character of a Special Court as defined in the Ordinance, it was further observed by the Supreme Court that where an enactment creates a new jurisdiction, prescribing the manner in which the jurisdiction is to be exercised, further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must only seek such remedy and not others.
9. The next question which arises is whether the Special Court has any power to review its order, judgments or decrees. The answer to this question has to be in negative. Firstly, for the reason that review like an appeal is substantive right and must be specifically conferred by the statute under which the case had arisen and there is no implied power to review vesting in any Court or authority, it was so held by the Supreme Court of Pakistan in the landmark case of Hussain Bakhsh v.
Settlement Commissioner, Rawalpindi and others (PLD 1970 S.C. 1), Muhammad Yousaf v. The Government of Pakistan (1992 SCMR 1748) and S. A. Rizvi v. Pakistan Atomic Energy Commission and another (1986 SCMR 965). it is also useful to refer to the case of Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar (PLD 1981 S.C. 359) in which the Supreme Court of Pakistan was pleased to rule that the orders passed by the Special Court even if it was treated as a Court subordinate to the High Court are not subject to revision by the High Court, it was observed that undoubtedly a Special Court is a Court of special jurisdiction and Sections 11 and 12 of the Ordinance preclude the High Court from exercising its revisional jurisdiction qua the orders of the Special Court. That case arose under the Banking Companies (Recovery of Loans) Ordinance, 1979, Sections 11 and 12 of which are pari materia of Section 27 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Another reason in support of this view that no application for review can be entertained by the Banking Court is that according to Section 27 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, 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 or the Banking Mohtasib under this Act. Section 27 ibid specifically bars filing of review petition before the Banking Court.
10. It will be useful to refer to the case of Dr. M. Fazii Zahir v. Mst. Begum Jan (PLD 1966 Lah. 53) wherein the question raised was as to whether the High Court while hearing an appeal under Section 15 (4) of the Punjab Urban Rent Restriction Ordinance, 1959 can review its order. A learned Single Judge of this Court held that as the power of entertaining second appeal has been conferred on the High Court, it has the power to review its orders. This judgment of the Lahore High Court was, however, specifically overruled by the Supreme Court in Muzaffar Ali v. Muhammad Shafi (PLD 1981 S.C. 94) in which it was observed that the right of review was substantive right and is always creation of the relevant Statute on the subject. The assumption that a review is continuation of cause is not correct, it was further held that if the intention of the Legislature was to grant the power of review in second appeal before the High Court, it would have specifically said so in the Ordinance itself like it did in the case of appeal. From the above narration, it becomes clear that there can be no right of review by inference or implication. This takes care of the argument of the learned counsel for the petitioner that by virtue of Section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, as the Special Court has all the powers of Civil Court, it should be assumed that it possesses the jurisdiction to review its judgments.
11. In M/s. Middle East Bank Ltd. V. Zubair Ahmad Khan Afghani (1990 MLD 909), it was observed that power of review and revision is a substantive right which cannot be exercised without conferment of such jurisdiction by the Statute itself. Such power can only be exercised by a Court, Tribunal or Authority when that power is granted to such Court, Tribunal or Authority by the very statute that created it.
12. Mr. Muhammad Akram Sheikh, learned counsel for the petitioner, however, submitted that every Court or Tribunal has the inherent jurisdiction to review its orders, in this respect he cited a recent judgment of the House of Lords in the case of Regina v. Bart/e and the Commissioner of Police for the Metropolis and others. This judgment is, however, of no avail as it does not deal with question which is in issue before this Court. He next cited Allied Bank of Pakistan Ltd. V. Shabhir Ahmad (PSC 1996 SC (Pak) 364) in which leave was granted by the Supreme Court of Pakistan to consider the question whether the Special Court constituted under the Banking Companies (Recovery of Loans)
Ordinance, 1979 has the power to review its orders in view of Section 6 of the Ordinance which confers all powers of Civil Court on Banking Court. With due deference, as the learned counsel himself stated that the aforesaid matter is still pending before the Supreme Court of Pakistan, therefore, he cannot take benefit of the leave-granting order. The next judgment to which reference was made by the learned counsel for the petitioner is Manohar Lai Chopra v. Raj Bahadur Rao Raja Seth Hiraiai (AIR 1962 S.C. 527) in which it was observed that every Court is vested with inherent jurisdiction to make order by ex debito justitiae which principle is affirmed by Section 15, CPC. Reliance of the learned counsel on this judgment is again of no avail to him as that case related to the power of the Court to issue temporary injunctions, Mr. Muhammad Akram Sheikh, Advocate also cited T. Krishnappa and another v. H. Lingappa (AIR 1982 Karnataka 58) in which it was observed that even though there may not be any provision in the statute conferring the power on the High Court to review its order still High Court can review order under inherent powers. This view is, however, contrary to the view taken by the Supreme Court of Pakistan in Muzaffar AH v.
Muhammad Shafi (PLD 1981 S.C. 94) and Hussain Bakhsh v. Settlement Commissioner (PLD 1970 S.C.
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13. As regards the Islamic principles of interpretation there can be no doubt that in view of Article 2- A of the Constitution of Islamic Republic of Pakistan, 1973 the Court while interpreting the provisions of various laws, must take into account the principles of Islamic Jurisprudence, in the present case, however, the matter is entirely different as the dispute is whether Banking Court has any jurisdiction to review its orders and there is no ambiguity on the question in issue in view of the fact that the Supreme Court of Pakistan in more than one cases has declared that the right of review was a substantive right and must be expressly conferred and cannot be inferred. The law declared by the Supreme Court is binding on this Court.
14. In view of what has been stated above, I am of the view that the Banking Court has no jurisdiction to review the judgments, decrees, or orders passed by it. Accordingly all these review applications fail and are dismissed leaving the parties to bear their own costs.