' The brief facts out of which present writ petition arises are that the respondent No,2-bank filed a suit for the recovery against the petitioner before the Banking Court-II, Lahore. The petitioner filed an application for leave to defend the suit. The respondent filed reply of the application for leave to defend the suit. The petitioner had filed an application under Order VII, rule 11, C.P.C., before the learned Banking Court, which was dismissed merely on the ground that leave to defend the suit, has not yet been granted by the Banking Court to the petitioner, vide order dated 24-10-2000. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that the respondent-Bank has filed the suit under special law and legislature in its wisdom has omitted the word "appears" in section 10 of Financial Institution (Recovery of Finances) Ordinance, 2001. He further submits that the omission was noted by the Karachi High Court and observed that the petitioner is well within his right to challenge the maintainability of the suit without filling of application for leave to defend the suit, therefore, the Baking Court erred in law to dismiss the application merely on the technical ground. In support of his contention, he relied upon "PICIC v. Frontier Ceramics Ltd. And others" 2000 CLC 287.
3. The learned counsel of the respondents submits that order passed by the Banking Court is within parameters prescribed by the legislature under special law in section 10 of the Financial Institution (Recovery of Finances) Ordinance, 2001. He further submits that the omission of word "appears" in section 10 of the aforesaid Ordinance, clearly shows that the Banking Court has no lawful authority to entertain the application of the petitioner under Order VII, rule 11, C.P.C., which is in accordance with law laid down by the Superior Courts:-- ' Habib Bank Ltd. v. Olympia Hosiery Works 1988 CLC 1340.
' Subhan Khan v. Nawal Khan PLD 1990 Lahore 302.
' National Bank Ltd. v. Tradewell Corporation 1991 CLC 1243.
' Syed Anwaar-ul-Hassan v. District Manager 2001 YLR 2741 and ' Grinnell Corporation v Deputy Registrar of Trade Marks 1993 CLC 2201.
4. The learned counsel of the petitioner in rebuttal submits that the judgments cited by the learned counsel of the respondents are distinguished on facts and law as the cited judgments are under the provisions of Order 37, C.P.C., and not under the special provisions of the Banking Law. Wherein the omission of word is "appears", therefore, judgments cited by the learned counsel of the respondents are distinguished on facts and law.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. The sole grievance of the petitioner is that the Banking Court erred in . Law to dismiss the application of the petitioner under Order VII, rule 11 of C.P.C. Merely on the ground that the Banking Court cannot entertain any application without granting leave to defend the case to the petitioner, which is not in consonance with law laid down by the learned Single Bench of Karachi High Court in "PICIC v. Frontier Ceramics Ltd. And others" 2000 CLC 287, whereas the view of this Court is otherwise, wherein it has been held that till such time, leave to defend the case, was granted and the defendant could not even filed interlocutory application in order to agitate the point of jurisdiction of this Court, etc. In arriving to this conclusion, I am fortified by the law laid down by this Court (Lahore High Court) in the following judgments: - - ' Un -reported judgment of D. B. Of this Court dated 25-9-2002 passed in R.F.A. No,185 of 2002.
"Messrs Waheed Corporation v. Allied Bank Ltd." 2003 CLD 245.
"Sh. Nazir Ahmad's case" 2002 CLD 1634. "Sarfraz Ahmad Malik's case" 2002 CLD 1422. "Malik Sultan Mehmood's case" 2003 CLD 724 "Messrs United Distributors v. Ahmad San Services etc." 1997 MLD 1835.
' It is pertinent to mention here that the special law is framed by the legislature in its wisdom so that the cases for recovery of Financial Institutions may be decided as expeditiously as possible. The legislature in its wisdom omitted the word "appears" in section 10 of the aforesaid Ordinance keeping in view the dictum laid down by the Superior Courts, which does not mean that the petitioner may file an application under Order VII, rule 11, C.P.C. For rejection of the plaint without securing leave to defend the case. In case, the contention of the petitioner is accepted, then it is against the object and purpose of law, which is not in consonance with the mandatory provision of law itself. Even, otherwise the judgment of the Division Bench of this Court is binding upon the learned Single Judge of this Court in view of mandate of the Constitution.
7. It is better and appropriate to reproduce section 10(1)of Financial Institution (Recovery of Finances) Ordinance, 2001 to resolve the controversy between the parties:-- ' Leave to defend the suit.
"(1) In any case, in which the summons has been served on the defendant as provided for in such subsection (5) of section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interests of justice."
' The legislature has used the following phrases in the said section to defend the suit unless he obtains the leave from the Banking Court:-- ' The word "obtain" means to procure or to get by ones own effort as interpreted in "Sk. Golam Mowla and another v. Chief Secretary, etc" PLD 1963 Dhacca 1049 and "Sh. Mujibur Rehman and another v. The State" PLD 1964 Dhacca 330.
' The word "defend" means according to Black's Law Dictionary, to contest, to prohibit or forbid, to deny, to contest and endeavor to defeat a claim or demand made against one in the Court of Justice.
' The word "appear" means appearing in a suit or proceedings. In other word mere physical presence of the party unless he is there for the purpose of conducting the case is not appearance, nor does the presence of his pleader, who had been instructed to appear on previous occasions constitute as appearance unless he is instructed to represent him on the occasion in question and attends for that purpose as held in "Messrs Hindustan Steel Ltd. v. Parakash Chand Agarwal and another" AIR 1970 Orissa 149 and "Sikandar Ali's case" AIR 1959 Calcutta 756.
' The word "appearance' means proceedings in the High Court of Judicature are begun by a writ or an originating summons, which is served personally on the defendant or his solicitor. The defendant if he wishes to defend, an action must file, at the appropriate office in the High Court, a paper which says "Enter" an appearance for the above-noted A---defendant and must serve a copy on the plaintiff or his solicitor. This is the appearance according to Harms. . In case, the aforesaid meaning of different phrases, is put in juxtaposition, then omission of word "appearance" in section 10 of the aforesaid Ordinance, does not change the character of section 10 of the aforesaid Ordinance, that the petitioner cannot enter appearance without securing leave to defend, in the suit filed under the provisions of aforesaid Ordinance against the petitioner by the respondents. In fact, the word "defend" includes the word "appears" in view of the aforesaid Dictionary's meaning. It is settled principle of law that when a thing is to be done in a particular manner, it must be done in that particular manner and not otherwise, as per principle laid down by the Honourable Supreme Court in "Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others" PLD 1971 SC 61. The Court has only powers to interpret the law and has no powers to add any word in the provisions of law in the garb of interpretation. It is also settled principle of law that it is the duty of the Court to ascertain real intention of the legislation as per law laid down in "Mafizullah v. Manaiullah and others" PLD 1963 Dhacca 318. It is also settled principle of law that the legislature's intention must be obtained from all surrounding circumstances and determination does not depend on the form of the statute. In order to get at the real intention of legislature, it is the duty of the Court to carefully attend to the whole scope of the statute to be constructed. Meaning thereby, the Court must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by Act and upon a review of the case in that aspect. As mentioned above, the legislature intention is very clear to recover the outstanding of financial institution from the loanee for which purpose special law is enacted and removed defect in the previous enactments on account of interpretation by the Superior Court.
' In view of what has been discussed above, this writ petition has no merit and the same is dismissed.