1. CH. IJAZ AHMAD, J. - The brief facts out of which the present writ petition arises are that the predecessor-in- interest of the petitioners namely Abdul Rashid secured a loan from the respondent/bank amounting to Rs. 1,98,500/- for the purchase of a tractor in the year 1991. An agreement was also executed between the original loanee and respondent/bank. According to the terms and conditions of the agreement the original loanee had to repay the loan to the respondent/bank in easy instalments till 1999. The original loanee had repaid two instalments to the respondent/bank. Subsequently original loanee had since been expired leaving behind legal heirs, petitioners and respondent No. 7. The respondent/bank filled a suit for recovery against the legal heirs of the original loanee before the concerned Banking Tribunal. The Banking Tribunal decreed the suit vide judgment and decree dated 23.6.1996 against the petitioners. The petitioners being aggrieved filed application under Section 6(5) of the Banking Tribunals Ordinance, 1984 for setting aside the judgment and decree dated 23.6.1996. The Banking Tribunal dismissed the aforesaid application of the petitioners vide order dated 3.6.1998. The petitioners without challenging the aforesaid orders, any specific order of the Banking Tribunal filed this writ petition with the following prayer:- "It is, therefore, prayed that appropriate writ be issued in the matter whereby the proceedings initiated and decided ex parte by respondent No. 4 and consequently the land put to auction and transferred in the name of respondent No. 3 in violation of the order of respondent No. 2, be held to be incorporative, ineffective, illegal, without association and participation of the petitioners, amounting to usurping the precious land of the petitioners, against the law and justice and accordingly the said proceedings be held accordingly the respondent No. 4 be directed to associate the petitioners in the proceedings and decided the same in accordance with law. It is stated before this Honourable Court that the petitioners are ready to deposit all the amount payable by the deceased to the respondent No. 4 in lump-sum subject to the release of their land free from encumbrance.
2. It is further prayed that since the possession of land is w the petitioners, so the status quo with regard to lana in question be maintained regarding the possession of the petitioners over the same, and respondent No. 3 be restrained to alienate, mortgage the land as such."
2. The learned counsel of the petitioners submits that petitioners were minor at the time when the respondent No. 1 had filed suit for recovery against them except petitioner No. 7, Imtiaz widow of original loanee. She was also Parda Nasheen lady. All the petitioners are living at Karachi and it was difficult for them to attend the Court at Sialkot on each and every date of hearing so they appointed their attorney real brother of the deceased original loanee, Mehmood Ahmad son of Sana Ullah vide General Power-of-Attorney dated 5.3.1997. The aforesaid attorney had started entered appearance before the Court. The attorney of the petitioners was involved in a false criminal case and he was sent to Jail on 9 3 1998 and was released on 24.3.2000 from the Jail as he was found innocent by the competent Court, who after release, found that the land in question of the original loanee had been auctioned and transferred in the name of respondent No. 3 Respondent No. 2 issued notice to the original loanee on 27.03.1997-with a direction to deposit the deposit the bank dues amounting to Rs. 1,36867/- when he had already expired in the year 1994.
3. The learned counsel of the petitioners submits that public notice was issued in the daily Pakistan and daily Frontier Post which are not read in Karachi. He further submits that notices were not issued/served in the names and addresses of the petitioners at Karachi. The respondent/Bank issued the notices to the original loanee as mentioned above to deposit the balance amount till 21.4.1997 whereas the respondent/bank filed the suit before the target date mentioned in the notice.
4. He further submits that suit was not competent against the minors. He further submits that suit was not competent against respondent No. 7 who was Pardha Nasheen lady. Before aforesaid orders were passed by the Banking Tribunal the service of the petitioners was not served in the prescribed manner by virtue of Order 5, Rule 20, C.P.C. He further submits that impugned orders of the Banking Tribunal is not in accordance with the law laid down by the superior Courts, In support of his contentions, he relied upon the following judgments:- Mst. Afzal Begum Vs. Y.M.C.A. (PLD 1979 S.C. 18)
5. Muhammad Ishaque Vs. Chief Administrator Auqaf (PLD 1977 S.C. 639)
6. Brig. (Retd.) Mazhar-ul-Haq Vs. M/s. M.C.B. Limited (PLD 1993 Lahore 706)
7. He further submits that petitioners are aggrieved persons therefore, writ petition is maintainable, In support of his contentions, he relied upon Messrs S.M. Ilyas and Sons Ltd. Vs. Monopoly Control Authority, Islamabad and another (PLD 1976 Lahore 834). He further submits that case was transferred from one Banking tribunal to another Banking Tribunal and the transferee Tribunal dismissed the application of the petitioners vide order dated 3.6.1998 without issuing any notice to the petitioners, therefore, the impugned order is not sustainable in the eyes of law. In support of his contention, he relied upon a case Fazal Bibi and others \/s. Abdul Haq and others (1991 CLC 291). He further Submits that superior Courts insisted that the cases be decided on merits and not on technicalities, In support of his contentions, he relied upon Haji Muhammad Islam Vs. Muhammad Rafique and 2 others (1991 CLC 84). He further submits that writ petition may not be dismissed on the principle of laches, In support of his contentions, he relied upon Messrs Dawood Yamaha Ltd. Vs. Government of Baluchistan and 3 others (PLD 1986 Quetta 148). He further submits that the fundamental rights of the petitioners qua the property in question are involved, therefore, writ petition is maintainable, In support of his contention, he relied upon Government of Sindh Vs. Raeesa Farooq and 5 others (1994 SCMR 1283).
8. He further submits that the impugned orders of the Banking Tribunal are Corum-non-judice, therefore, same are not sustainable in the eyes of law and this Court has ample jurisdiction to set aside the impugned orders, In support of his contentions, he relied upon the following judgments:- Messrs Chenab Cement Product (Pvt.) Ltd. Vs. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672)
9. Islamia University, Bahawalpur \/s. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141)
10. Abdul Rahim and 2 others Vs. Messrs United Bank Ltd. (PLD 1997 Karachi 62)
11. Headmaster Government Zia-ul-Aloom High School, Raja Bazar, Rawalpindi and others Vs. Chairman Evacuee Trust Property Board and others (1996 CLC 1785)
12. [Vol.VIII Zakariya V. Agricultural Development Bank of Pak. C.L. 51 (Ch. Ijaz Ahmad, J.)
3. The learned counsel of the respondents submits that writ petition is liable to be dismissed as the petitioners did not take a single ground mentioned in the application filed by the petitioners for setting aside the judgment and decree of the Banking Tribunal dated 23.6.1997, therefore, petitioners are estopped to raise all these fresh grounds before this Court in Constitutional jurisdiction. He further submits that judgment and decree was passed against the petitioners by the Banking Tribunal vide judgment and decree dated 23.6.1997. He petitioners being aggrieved filed application for setting aside the judgment and decree through themselves instead of through their general attorney as is evident from the contents of the application as the application was duly signed by all the petitioners. The application was dismissed by the Banking Tribunal vide order dated 3.6.1998. The petitioners have alternative remedies against the aforesaid orders under the provisions of the Banking Laws before this Court which shall be heard by the Division Bench of this Court, therefore, writ petition is not maintainable, In support of his contentions, he relied upon Abdul Wahid Vs. Banking Tribunal, Bahawalpur and others (1995 MLD 1960) and Messrs Tank Steel and Rerolling Mills (Pvt.) Ltd. Dera Ismail Khan and others Vs. Federation of Pakistan and others (PLD 1996 S.C. 77). He further submits that petitioners concealed the material facts from this Court as the petitioners did not mention a single word that application for setting aside the judgment and decree was dismissed by the Banking Tribunal vide order dated 3.6.1998. He further submits that judgment and decree was passed against the petitioners vide order dated 23.6.1996 and the application\ for setting aside was dismissed by the Banking Tribunal on 3.6.1998 whereas the petitioners filed this writ petition on 24.5.2000, the same is liable to be dismissed on the well-known principle of laches. He further submits that petitioners failed to place on record any document to show that petitioners Nos. 1 to 6 are minors and also failed to bring on record any document to show that respondent No. 7 is Pardha Nasheen lady. He further submits that general attorney of the petitioners was on bail as is evident from the concluding para of the judgment of the learned Addl. Sessions Judge, Narowal dated 24.3.2000. He further submits that execution petition is still pending adjudication before the executing Court. He further urges that the property in question was auctioned under the law and respondent No. 3 participated in the auction proceedings held by the Court auctioner, the bid of respondent No. 3 was accepted and confirmed by the Banking Tribunal, therefore, this writ petition is not maintainable. The learned counsel of the petitioner in rebuttal submits that sale certificate has not been issued by the executing Court till date, therefore, writ petition is maintainable. He further submits that property of the petitioners was auctioned in favour of the respondent No. 3 in mala fide manner and the property in question was sold to a very low price, therefore, this Court may exercise its discretion in the interest of justice to save the property of the petitioners.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is admitted fact that petitioners did not challenge the specific order of the Banking Tribunal, It is settled principle of law that writ petition is not maintainable on mere apprehensions as per principle laid down by the Honourable Supreme Court in National Rerolling Steel Mills's case (1968 SCMR 317(2)). It is also admitted fact that ex parte decree was passed against the petitioners by the Banking Tribunal vide judgment and decree dated 23.6.1996. The petitioners themselves filed application for setting aside the same before the Banking Tribunal which was duly signed by all the petitioners. The same was dismissed by the Banking Tribunal vide order dated 3.6.1998. This fact was concealed by the petitioners in the contents of the writ petition, It is settled principle of law that he who seeks equity must come with clean hands The petitioners do not approach this Court with clean hands by concealing the material facts, therefore, I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Honourable Supreme Court in the following judgments:-- Abdul Rashid Vs. Pakistan and others (1969 SCMR 141)
13. Principal K.E.M.C., Lahore Vs. Ghulam Mustafa, etc. (1983 SCMR 196)
14. Rana Muhammad Arshad Vs. Add!. Commissioner (Revenue), Multan Division and others (1998 SCMR 1462)
15. Nawab Syed Raunaq AH Vs. Chief Settlement Commissioner (1973 S.C 236)
16. It is pertinent to mention here that under the provisions of he Banking Laws, the service of the petitioners has been effected through proclamation in daily Pakistan dated 6.5.1996 and daily Frontier Post dated 7.6.1996 and through Bailiff as is evident from the impugned judgment and decree dated 23.6.1996. It is also admitted fact that loan was secured by the original loanee in Punjab, the land was also situated in Punjab, therefore, Banking Tribunal was justified to get the service effected through proclamation in daily Pakistan and daily Frontier Post. The judgment cited by the learned counsel of the petitioners are distinguished on facts and law in view of the latest judgment of the Honourable Supreme Court in M/s. Ahmad Auto's case (PLD 1990 S.C. 497). It is also settled principle of law that special law excludes the general law. The learned counsel of the petitioners heavily relied upon Order 5, Rule 20, C.P.C, whereas provisions of the Banking Tribunal Ordinance, prescribe three modes of service, therefore, provisions of the Tribunal excludes the provisions of the general law. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Zia-ur-Rehman's case (1973 S.C. 49). The aforesaid proposition of law is also supported by the following judgments:- United Bank Ltd., Karachi Vs. Messrs Kashmir Corner (1988 CLC 1068)
17. Messrs Allied Bank of Pakistan Ltd. Vs. Messrs Tahir Traders and 8 others (PLD 1986 Karachi 369)
18. It is pertinent to mention here that there are three modes prescribed under the Banking Laws and service by any one of the three modes including publication constitutes a good service, In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Messrs Ahmad Autos and another Vs. Allied Bank of Pakistan Limited (1990 S.C. 497). The impugned orders of the Banking Tribunal mentioned in the report and parawise comments which were not specifically challenged by the petitioners as is evident from the prayer clause, the petitioners have alternative remedy to file appeal before this Court under the provisions of the Banking Laws which shall be heard by the Division Bench of this Court In this view of the matter, writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in Muhammad Ismail's case (1996 S.C. 246). The judgment cited by the learned counsel of the petitioners are distinguished on facts and law and has no relevancy to resolve the controversy.
19. In view of what has been discussed above, this writ petition has no merits and the same is dismissed.