' Muslim Commercial Bank Ltd., through the institution of the present Constitutional petition, under Article 199 of the Constitution of the Islamic Republic of Pakistan, J973, has called in question the legality and validity of order, dated 31-1-2002, whereby the learned Judge Banking Court, while accepting an application filed under section 10 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 (hereinafter referred to as Ordinance), granted leave to defend the suit to respondents Nos.2 to 9, in a suit for the recovery of Rs,2,01,39,193, filed by the petitioner-Bank.
2. Facts culminating in the filing of the present Constitutional petition are that the petitioner-Bank, statedly, extended various financial facilities to Messrs J.K. Fibre Mills Ltd. (respondent No,2), which were, reportedly, availed by the said respondent. According to the petitioner, respondent No,2 committed default and when failed to discharge their contractual and financial obligations, the petitioner-Bank was constrained to file a suit for the recovery of Rs,2,01,39,193 against respondents Nos.2 to 9 before the learned Banking Court, Faisalabad. After having been served in accordance with the provisions of the Ordinance, respondents Nos.2 to 9 initially filed an application seeking leave to defend the suit under the provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and subsequently after the promulgation of Ordinance, 2001, filed an amended application under section 10(12) of the Ordinance, 2001, seeking leave to defend the suit. Consequent to the above, the learned Banking Court, after hearing the arguments, allowed the afore noted application and granted leave to defend the suit to defendants Nos.2 to 9 vide order, dated 31-1-2002, which order has been called in question through the filing of this Constitutional petition.
3. ' Learned counsel for the petitioner has contended that the impugned order is illegal as the same has been passed in complete oblivion of the facts of the case and in utter disregard to the provisions of section 10 of Ordinance, 2001, inasmuch as respondents Nos.2 to 9 were not able to raise substantial question of law and facts in respect of which evidence needs to be recorded, thus, liable to be declared illegal and passed without lawful authority.
4. When the learned counsel was asked to demonstrate how the present petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973), is competent and maintainable against an interlocutory order, passed by the learned Judge Banking Court through which he has granted leave to defend the suit when admittedly, the lis is still pending before the Court of competent jurisdiction, the learned counsel explained that as section 22(6) of Ordinance, 2001, specifically provides that no appeal, review or revision shall lie against order accepting an application for leave to defend the suit, therefore, hating no other alternative remedy, Constitutional petition can be filed. He has relied upon an unreported judgment passed by the learned Single Judge of this Court in Writ Petition No,791 of 1999.
5. Now the question which has arisen for determination by this Court is as to whether a Constitutional petition is competent against an order passed by the learned Judge Banking Court accepting or rejecting an application for leave to defend the suit. It would be advantageous to reproduce section 22(6) of Ordinance, 2001, which has incidentally been relied upon by the learned counsel for the petitioner in support of the maintainability of the petition:--- "No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19."
6. It is evident from the perusal of the aforesaid provision of law that the Legislature, in its own wisdom, has made the order, granting or rejecting an application for leave to defend the suit, as non-appealable by specifically making the provision in that respect in the form of ' section 22(6)
(ibid). In these circumstances, if the Constitutional petitions are allowed to be filed against such orders, that too by the financial institutions, it would tantamount to defeating and deflecting the legislative intent. The Hon'ble Supreme Court of Pakistan while dilating upon in somewhat similar controversy in a case reported as Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165) has held as under:--- "The statute excluding a right of appeal from the interim order cannot be bypassed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders."
' It has further been held in Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others (1998 SCMR 328) that:- ' that as the main election petition is still pending before the learned Tribunal and an appeal is provided against the final decision of the Tribunal before this Court, the petitioner in the event of the final decision going against him, will be entitled to raise all the pleas available to him, in the appeal before this Court including the preliminary objection as to the maintainability of the petition which has been overruled by the learned Tribunal by the impugned judgment."
' Sindh High Court has also followed the aforenoted dictum laid down by the Hon'ble Supreme Court in the afore noted cases in a case reported as Ms. Afshan Ahmad v. Messrs Habib Bank Limited and another (2002 CLD 137) and declared as under:--- ' section 21(1) has provided the right of appeal against a decree/order/sentence passed by a Banking Court. Any other order or decision not falling within the definition of the decree/ order/sentence as specified cannot be challenged by way of an appeal under section 21 of the said Act. The impugned order obviously does not fall within any of the categories of the order specified in subsection (1) of section 21 so as to be appealable. It . Is a settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of a Constitutional petition as allowing such an order to be impugned by way of a Constitutional petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order."
' While dilating upon the exercise of Constitutional jurisdiction, the apex Court of the Country in a case reported as Shaikh Gulzar Ali & Co. Ltd. And others v. . Special Judge, Special Court of Banking and another (1991 SCMR 590) held as under:--- "Art. 199---Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.6---Constitutional jurisdiction, exercise of---Mere erroneous exercise of jurisdiction does not render the order passed by a Civil Court of competent jurisdiction to be illegal and without lawful authority so as to be amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199 of the Constitution."
7. If the Constitutional petitions are allowed to be entertained against the interlocutory orders passed by the learned Banking Court, including an order granting or rejecting the application for the grant of leave to defend, I am of the considered view that the said course of action would itself negate the provisions of the Banking Statutes, which have been promulgated from time to time for the speedy disposal of the cases relating to the financial institutions and for the recovery of public money, illegally been withheld by some of the unscrupulous customers, thus, would seriously defeat the clear legislative intent discernible from the provisions of the Ordinance. I am fortified in my views by the judgment of this Court reported as Crescent Factories Vegetable Ghee Mills and 5 others v. National Bank of Pakistan, District Courts Branch, Sahiwal and another (PLD 1985 Lahore 150), wherein it has been held as under:-- "Interlocutory order passed by Special Court during the trial of the suit unamenable to appeal/revision, if allowed to be brought under challenge by recourse to extraordinary jurisdiction of the High Court will seriously defeat and deflect clear legislative intent discernible from the provisions of Ordinance."
' Same view was taken in the case of Messrs Salman Mehmood Cotton Ginners, Kabirwala and 2 others v. Special Judge, Banking (II) and another (PLD 1982 Lahore 353).
' The aforesaid dictum was also followed by the Sindh High Court in the case reported as Messrs Narumal Jetomal and 2 others v. Judge of the Special Court of Sindh and another (1983 CLC 2695) wherein it was held that the order of Special Judge Banking, being appealable before the Court, petitioner had alternative and efficacious remedy available against such order, High Court will not interfere in the exercise of Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan; 1973.
' The said view was affirmed by the same High Court in Khokhar Engineering Company and 2 others v. Habib Bank Limited (1986 MLD 2941) wherein a view was taken that the Constitutional jurisdiction could not be invoked which would have effect of defeating and deflecting the legislative intent and where a remedy was provided against the final order passed by the Special Court or Tribunal, superior Courts would not interfere with the same in the exercise of Constitutional jurisdiction, unless such orders have the effect of disposing of entire case before the Special Court.
' The aforesaid views were further reaffirmed in the case reported as Syed Ali Azhar Naqvi v. The Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others (PLD 1994 Karachi 67) holding as under:--- "Art. 199---Constitutional jurisdiction, exercise of-- Legislative intent---Constitutional jurisdiction could not be invoked where it could have the effect of defeating or deflecting legislative intent."
8. Undoubtedly the main suit is still pending for further adjudication of the matter before the Court of competent jurisdiction. During the pendency of the suit, the impugned order, which is for all intents and purposes an interlocutory order, was passed by the learned Banking Court. It is not the case of the petitioner that the impugned order is either arbitrary or passed in excess of jurisdiction.
It is settled law that the interlocutory orders are not amenable to the Constitutional jurisdiction and the writ petitions are not entertain able against the interlocutory orders passed by the Courts. The following case-law will amply support the above proposition of law:--- ' Bashir Ahmad v. Province of Punjab and others (1988 CLC 1965), Malik Abbas Raza v. Government of Balochistan and others (PLD 1968 Lahore 163), Ghulam Hussain and another v. Malik Shahbaz Khan and another (1985 SCMR 1923), Muhammad Siddique Qazi v. Muhammad Ibrahim and another (1987 MLD 265) and Ghulam Muhammad and others v. Munir Ahmad Shah and others (1994 CLC 14).
9. As noted above the suit is pending before the Judge Banking Court and he has to still render its final verdict. There is no cavil to the proposition that if the suit would ultimately be decided against the petitioner-Bank, it would have a right of appeal under section 22(1) of the Ordinance, 2001, wherein all the questions/grounds raised by the petitioner in the present petition would, of course, be available to it before the appellate forum. Undoubtedly the said remedy of appeal would be available to the petitioner in due course. The impugned order will obviously merge into the final order and the said order could be assailed, under the aforenoted provisions of law, before the Appellate Court, if the ultimate decision/ judgment passed by the Banking Court in the suit goes against the petitioner.
10. I have examined the impugned order, which has neither been passed in excess of jurisdiction nor suffer from want of jurisdiction nor the learned counsel could point out any jurisdictional error/defect in the same, therefore, I am not inclined to exercise my Constitutional jurisdiction to interfere in the interlocutory order.
11. It appears from the impugned order that the learned Banking Court, while exercising its discretionary powers has granted leave to defend the suit to respondents Nos.2 to 9, by accepting their application. The learned counsel was not able to point out that the said exercise of discretion was either arbitrary, fanciful or against the recognized principles for the exercise of discretion.
Superior Courts had always been very reluctant in interfering with the orders passed by the subordinate Courts in exercise of its discretionary powers, as such, on this ground too I am not inclined to interfere in the impugned order. Reliance is placed on Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749 and Sh.
Muhammad Ramzan v. Special Judge, Banking Court (1986 MLD 614).
12. So far as the reliance of the learned counsel in an unreported judgment rendered in a writ petition is concerned, suffice it to say that the ratio of said case is not applicable in the facts and circumstances of the present case inasmuch as this Court did not decide about the question of maintainability of writ petition against an order passed by a Banking Court in granting or refusing leave to defend the suit, neither such a question came up for . Determination in the said writ petition.
13. Another aspect of the case is that if the Constitutional petitions are to be entertained against the interlocutory orders passed by the Judge Banking Court it would not only deflect the legislative intent to promulgate the Ordinance, as noted above, but would also set at naught the provisions of section 13 of the Ordinance, 2001, which, inter alia, provides that a suit in which leave to defend has been granted shall be disposed of within 90 days from the day on which leave was granted. In the present case leave was granted, on 31-1-2002, and as such per force of aforenoted provisions of law it is incumbent upon the learned Banking Court to decide the suit within a period of 90 days and if the proceedings would continue beyond the said period the defendants may be required to furnish the security. As leave was granted to the defendants, on 31-1-2002, thus, according to section 13 (ibid) the Banking Court has to dispose of the suit on or before 30-4-2002.
14. After examining the aforesaid case-law I am constrained to hold that the Constitutional petition, against an order passed by the Judge Banking Court accepting or rejecting an application for grant of leave to defend the suit, is incompetent and not maintainable, thus, cannot be entertained. The question, which arose in this Constitutional petition has been answered accordingly.
15. In the above perspective the present Constitutional petition is incompetent and not maintainable, thus, I am constrained to dismiss the same in limine.
16.Before parting with this order, it may be observed that I have noted from the impugned order, dated 31-1-2002, that although the learned Banking Court after the grant of leave, treated the leave application as written statement yet directed the parties to file proposed issues. This course of action is contrary to the provisions of section 10(10) of Ordinance, 2001. Needless to mention that it has been enjoined upon the Banking Courts by virtue of section 10(10) of Ordinance, 2001, that in its order granting leave, the Banking Court shall frame issues. In this case the learned Banking Court has adjourned the suit for future date for framing of issues, which is against the intent of law.
Learned counsel has pointed out that despite the lapse of 39 days, not even a single witness has been recorded. In the said backdrop I would like to direct the learned Banking Court to strictly comply with the provisions of section 13 of the Ordinance, 2001, and to decide the suit within the stipulated period of 90 days as ordained by the Ordinance, even it has to undertake day to day proceedings.
' Office is directed to transmit the copy of this order to the learned Banking Court.