The question involved in this appeal is short and simple. The appellants who were the judgment- debtors in Execution Application No.12 of 2000 arising from a decree in Suit No.458 of 1998 before the learned Banking Court No.1V, Karachi had filed an application under Order XXI, Rule 2, C.P.C. The said application came to be dismissed for non-prosecution on 30-6-2000. The appellants moved an application for the restoration of the application the very next day i.e. on 1-7-2000 which was opposed by the respondent/decree-holder. The learned Banking Court dismissed the application holding that recalling the order, dated 30-6-2000 would tantamount to reviewing the same and the jurisdiction to review an order was not available to a Banking Court in terms of the explicit provision of section 27 of the. Banking Companies (Recovery of Loans. Advances. Credits and Finances) Act (XV of 1997). Aggrieved by the aforesaid order the appellants have preferred this appeal and the only question to be resolved is whether the Banking Court did or did not have the jurisdiction to recall its earlier order, dated 30-6-2000.
2. Mr. M. Saleem Thepdawala learned counsel for the appellants strongly relied upon the well- known Full Bench judgment of the Lahore High Court in Muhammed Aslam Mirza v. Khursheed Begum PLD 1972 Lah. 603 where. their lordships, by majority, took the view that every tribunal possessed and implied and inherent power to set aside order passed in default of appearance of the parties. Moreover, he contended that the powers vested in a Civil Court remained available with Banking Courts under the 1997 Act by virtue of section 7 of the Act subject to the provision of the special statute. According to the learned counsel, the power of review under Order 47, C.P.C. might not be available to the Banking Court in view of the specific stipulation in section 27 but the powers under Order IX or section 151, C.P.C. remained unaffected.
3. On the other hand, Mr. Asim Mansoor Khan, learned counsel for the respondent argued that it was settled law that inherent power to review or recall an earlier order was not available with any Court or judicial tribunal and such power must be conferred by law. Alternatively he argued that even if such power is deemed to exist under the general law, the same was not available to a Banking Court under. the 1997 Act. He pointed out that section 27 of the Act expressly provided that subject to the provision of appeal no Court could revise or review any order, judgment, decree or sentence of a Banking Court. Learned counsel referred to a recent decision of this Court in Allied Bank of Pakistan v. Digital Radio Paging (Pvt.) Limited and others 2000 CLC 1153. In this case an application for recall of an order dismissing an application for leave to defend under the 1997 Act was made by invoking section 151. C.P.C. Mushtaq Ahmed Menton, J. (as his Lordship then was) held that such an application was not entertainable. His Lordship observed that the power of review was not an inherent power but must be based on specific conferment by law. Moreover, while distinguishing certain judgments cited at the bar his Lordship proceeded further to hold that the negative mane of section 27 of the Act expressly prohibiting review of an earlier order must be given full effect.
4. The above judgment fully supports the contention of Mr. Asim Mansoor Khan. Indeed there could be no cavil that the power of review must be conferred by statute and that section 27 of the Act has to be given its full effect. Nevertheless, and we say so with the profoundest respect to the learning and legal acumen of the learned Judge pronouncing the above judgment, for which we have great admiration; the real question for determination would be whether an order recalling an earlier order which had not been passed on merits but only on account of non-appearance of a party would really amount to a review of the earlier order? The expression review has not been defined in the 1997 Act or any other relevant statute. Therefore, we must resort to its ordinary dictionary meaning.. An Black Law Dictionary (VI Edition) review has been defined as follows:-- "To re-examine judicially or administratively. A reconsideration; second view; or examination; revision; consideration for purpose of correction..."
5. In the Lahore Full Bench case cited by learned counsel for the appellant PLD 1972 Lah. 603 the distinction between an application seeking rehearing of a case decided ex parte and one seeking review of the ex parte judgment was appreciated. It was held that in the former type of proceedings a party claims rehearing on the ground that he was prevented by some sufficient cause from appearing on the date of hearing while in the latter he question the order passed on its own merits. The distinction if may say so with respect, was brought out in the Supreme Court judgment in Haji Fateh Muhammad v. Maula Bux and others PLD 1963 SC 311. In this case an ex parte order was passed by the Deputy Settlement Commissioner without hearing the appellant. Upon an application made by the appellant he was duly heard but the same order was passed. Subsequent orders passed in appeal were challenged on the ground that an order passed in review was not appealable but the contention was repelled by S.A. Rehman, J., holding that the Deputy Settlement Commissioner had not in reality reviewed his previous order.
6. The position if we may say so with respect stands clarified from a relatively recent pronouncement of the Honourable Supreme Court in Haji Khuda-e-Nazar v. Haji Abdul Bari 1997 SCM R 1986 which was not cited at the bar before us and was indeed not brought to the notice of the learned Single Judge deciding Allied Bank's case referred to in paras. 3 and 4 above. It may be pertinent to reproduce the following observations of Saleem Akhtar, J. speaking for a three members Bench of the Honourable Supreme Court of Pakistan:--- "It is now well-settled that in proceedings before Court or Tribunal of quasi-judicial nature, even if there is no provision for setting aside an ex parte order, the Court/Tribunal would be empowered to exercise such power by applying principles of natural justice. Such provisions which enshrine principles of natural justice have to be read in the statute which do not specifically debar such a remedy.
Therefore, even without applying the provisions of C.P.C. in terms, the procedure provided under Order IX, Rules 9 and 13 and Order XLI, Rule 17, C.P.C. can be applied by the Controller or the High Court in rent proceedings. In such cases the Court is not required to consider and decide it on merits, but it is to see whether the defaulting party was prevented from appearing in Court due to sufficient reasons. It would, therefore, not amount for reviewing its own judgment which surely a Controller is not empowered to do."
(Underlining is ours)
7. In view of the above discussion, we are of the considered opinion that there is a clear distinction between review of an earlier order and recalling one passed on account of non-appearance of a party. In the former the merits of an earlier order are considered but in the latter only the cause of non-appearance is to be taken into consideration. In the former case the power must be conferred by statute but in the latter it stems from the principles of natural justice required to be read into every law. The former is excluded by section 27 but the latter continues to remain available.
8. As regards the alternate contention of Mr. Asim Mansoor Khan premised on the specific provision of section 27 of We Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and the observations made in Allied Bank's case 2000 CLC 1153 we are constrained to express our inability to subscribe to the view canvassed. The observations in the above judgment, if we may say so with respect, arise from the assumption that some inherent power of review is deemed to exist in the Rent Laws or the Industrial Dispute Act, 1947 referred to in the aforesaid judgment which has been taken away from a Banking Court by the express mandate of section 27 of the 1997, Act. Nevertheless once it is acknowledged that the power to review must be expressly conferred by law no question of any such implied power can possibly arise. We are clearly of the view that the power to recall an ex parte order is an 'altogether different power than one of review and emanates from a different source., therefore, nothing turns on section 27 in the present context.
9. The learned Banking Court had decided the application on the question of jurisdiction without considering the merits i.e. sufficiency of the cause of non-appearance of the appellant. We have also not heard any arguments in this respect. We would, therefore, allow this appeal, set aside the impugned order and remand the case to the learned Banking Court to decide the application on merits without unnecessary delay. Proceedings in Execution, however, shall remain stayed till the decision of the application. Let the R and P be sent to the learned Banking Court immediately.