1. ' SAIYED SAEED ASHHAD, C.J.---This Constitutional petition has been filed by the petitioner assailing the order of Banking Court No,III, Karachi dated 15-4-2002 dismissing the application of the petitioner and respondents Nos,4 and 5 under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the Ordinance of 2001) seeking leave to defend the suit. The petitioner has sought the following reliefs:--
(a) To declare that the impugned order dated 15-4-2002 passed by the Banking Court No,III at Karachi in Suit No,258 of 2001 by which the petitioner's application for leave to defend the suit was dismissed as without the authority of law and of no legal effect and the same is set aside;
(b) to declare that the petitioner's application for leave to defend the suit is granted and/or the plaint of the said suit against the petitioner is rejected and/or the name of the petitioner is deleted from the arrays of the defendants in the said suit. This Honourable Court may further be pleased to order--
(i) that till the petition herein is decided the impugned order as against the petitioner is suspended and/or further proceedings in the said suit against the petitioner is stayed;
(ii) granting costs to the petitioner; and
(iii) passing such or other and further order in favour of the petitioner as may appear just and proper in the circumstances of the case.
2. ' The brief facts leading to this Constitutional petition are that respondent No,2 filed a suit against the petitioner and respondents Nos,3, 4 and 5 being Suit No,258 of 1991 in Banking Court No,III, Karachi for recovery of R's.8,44,179.42 from the aforesaid petitioner and respondents jointly and severally. The petitioner and respondents Nos,4 and 5 submitted applications under section 10 of the Ordinance of 2001 seeking permission to defend the suit. Banking Court No,III after hearing the learned counsel for the parties dismissed the applications on the ground that respondents Nos,4 and 5 admitted to have executed agreement for providing finance facility, demand promissory note, letter of hypothecation and personal guarantees. As against the petitioner, the concerned Banking Court held that he being the president of respondent No,3 on whose behalf and for whose benefit the finance facility was obtained, he would be liable for repayment of the aforesaid finance facility. Feeling aggrieved and dissatisfied with the above order of Banking Court No,III, the petitioner has assailed the same by way of this Constitutional petition.
3. ' We have heard the arguments of Mr. K.M. Samdani, learned counsel for the petitioner and Mr. Badar Alam, learned counsel for respondent No,2 Messrs Habib Bank Limited and have perused the material on record, the relevant provisions of the law and the case-law relied upon by the learned counsel in support of their respective contentions.
4. ' The learned counsel for the parties had requested that the Constitutional petition may be disposed of finally at the stage of Katcha Peshi which request was granted.
5. ' Mr. Badar Alam, Advocate for HBL vehemently objected to the maintainability of the Constitutional petition on the ground that the impugned order was neither a judgment, a decree, a sentence or final order passed by a Banking Court as envisaged under section 22(1) of the Ordinance of 2001 thus it was not liable to be assailed by way of an appeal in view of the provisions of subsection (6) of section 22 of the Ordinance of 2001. He further submitted that according to the said principle of law an order which could not be assailed or challenged by way of an appeal under a particular statute under which the Court passing the same was exercising power/jurisdiction could also not be challenged by way of a Constitutional petition. In support of his contention he placed reliance on the case of Syed Saghir Ahmed Naqvi v. Province of Sindh and another 1996 SCM R 1165. Mr. Badar Alam also referred us to the cases of : (i) Ghulam Hussain and another v. Malik Shahbaz Khan and another 1985 SCM R 1925 and (ii) Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others PLD 1996 SC 77 in support of his contention that a Constitutional petition would not be maintainable for assailing an order passed by a Banking Court which did not fall within the scope of section 22(1) of the Ordinance of 2001. Mr. Badar Alam submitted that in view of the foregoing arguments and the pronouncements made by the Supreme Court in the aforecited three (3) cases a Constitutional petition was absolutely misconceived and not maintainable and was liable to be dismissed in limine.
6. ' Alternatively, he submitted that refusal of the Banking Court to grant leave to defend the suit would amount to deciding the suit finally against the petitioner and respondents Nos,4 and 5 as after refusal of the leave to defend the suit, respondent HBL was not required to do anything further for the purpose of establishing/proving its case and the suit had to be decreed in terms of the prayer after pronouncement of the formal judgment. He further submitted that in this view of the matter, the impugned order was liable to be assailed /challenged by way of an appeal under section 22 of the Ordinance of 2001 after the decree was drawn and further submitted that when a statute provided a machinery and a forum for assailing an order passed under the said statute then in accordance with the settled principle of law such an order was to be assailed/challenged by having recourse to the forum having jurisdiction to entertain an appeal/review/ reference, as the case might be. In support of this above contention, he placed reliance on the case of Mst. Kaniz Fatima v. Muhammad Salim and 27 others 2001 SCM R 1493. In the cited case, the Supreme Court had laid down two very important enunciations. Firstly, that where a particular statute provided self-contained machinery for determination of questions arising under the statute and also provided a remedy by way of appeal or revision to another Tribunal /Court fully competent to give any relief then resort to Constitutional jurisdiction of this Court and indulgence by this Court in admitting a Constitutional petition would produce a sense of distrust in the statutory Tribunal/ Court and that no Constitutional petition would be maintainable without exhausting the remedy provided by the statute; and secondly, that before a person could be permitted to invoke the discretionary power of a Court, it was imperative for him to show that the order assailed had occasioned some injustice to the party. It was further observed that controverted questions of fact, adjudication on which was possible only after obtaining all types of evidence possessed by the parties, could be determined only by the forum concerned and in such cases Constitutional petition would not be competent subject to certain exceptions, ' Mr. K.M. Samdani, learned counsel for the petitioner refuted the arguments advanced by Mr. Badar Alam and submitted that there was no dispute with the contention that it was a settled principle that a Constitutional petition would not be maintainable for challenging/ assailing an order which was not made appealable under the provisions of a statute under which it was passed. He further submitted that there was also no dispute with regard to the principle that when a statute provided a machinery and forum for assailing /challenging an order of a Court under the said statute then it was incumbent upon the aggrieved party to resort to the machinery and the forum provided for by the statute. He further submitted that in the present case the contention of the counsel for respondent HBL that the impugned order did not come within the meaning of a judgment, a decree, a sentence, or a final order so as to be appealable was completely misconceived inasmuch as the impugned order rejecting the applications filed by the petitioner and respondents Nos,3 and 4 seeking leave to defend the suit was a final order which required only a formal pronouncement of judgment and decree with the result that the impugned order virtually amounted to a judgment decreeing the suit as prayed in view of the provisions of subsection (ii) of section 10 of the Ordinance of 2001, which provided that where application for leave to defend was rejected, the Banking Court would forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant. He further submitted that in view of the above factual and legal position, the impugned order was liable to be assailed/challenged under section 22(1) of the Ordinance of 2001 by filing an appeal.
7. ' With regard to the proposition that when the impugned order fell within the scope of subsection
(1) of section 22 of the Ordinance of 2001 then why instead of filing an appeal as provided therein the petitioner had taken recourse to the Constitutional jurisdiction of this Court to assail the same.
8. Mr. K. M. Samdani submitted that the impugned order was an illegal and void order insofar as it related to the petitioner inasmuch as respondent No,2 HBL had no locus standi to proceed against the petitioner for recovery of the above finance facility as the petitioner could not be said to be a customer within the meaning of the word "customer" appearing in section 2(c) of the Ordinance of 2001 nor he had been granted any finance facility as defined in section 2(d) of the Ordinance of 2001 and the petitioner could not be subjected to the jurisdiction of Banking Court No,III or any other Banking Court but in spite of objections to the above effect having been raised on behalf of the petitioner, Banking Court No,III extended its jurisdiction over the petitioner and exercised the same against him illegally rendering the ensuing order as illegal and void thus enabling the petitioner to invoke the Constitutional jurisdiction of this Court in view of the observations made by the Supreme Court in the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCM R 1881 to the effect that if the order complained of was so patently illegal, void or wanting in jurisdiction that any further recourse to alternative remedy might only be counter-productive and by invocation of Article 199 the mischief could forthwith be nipped in the bud, then in such matters neither the alternate remedy would be adequate nor bar of jurisdiction in the Sub-Constitutional Legislation might come in the way of this Court in exercising its Constitutional jurisdiction.
9. Alternatively, Mr. K. M. Samdani submitted that subsection (3) of section 22 of the Ordinance of 2001 which provided furnishing of security by the appellant at the time of admission of the appeal by the Banking Court in its discretion and the requirement, of the proviso to subsection (3) for depositing in cash in this Court an amount equivalent to the decretal amount inclusive of costs would put an unnecessary burden on the petitioner if he had chosen to file an appeal under section 22 of the Ordinance of 2001 inasmuch as the petitioner being a retired Government servant was not in a position to deposit the amount of Rs,8,44,179.42 inclusive of the costs. He further submitted that in order to deposit the aforesaid amount in Court in case of filing an appeal he would have been put to great harassment and humiliation as by not having the aforesaid amount with him he would have been forced to beg or borrow the above amount which would have not only lowered his prestige and dignity but would have also placed him under great financial constraint making it difficult for him to meet his financial and monetary responsibilities. It was.
10. Further submitted by Mr. K. M. Samdani that in such extreme and extraordinary adverse and difficult circumstances the petitioner would be entitled to have recourse to Article 199 of the Constitution of the Islamic Republic of Pakistan and a Constitutional petition would be validly maintainable. In support of his above contention, he placed reliance on the case of Balochistan Trading Company (Pvt.) Ltd. And another v. National Bank of Pakistan and another 1998 SCM R 1899.
11. ' With regard to his contention that the impugned order was illegal without jurisdiction and void ab initio as against the petitioner, he submitted that from perusal of the material on record it was absolutely clear that the petitioner had neither applied for the finance facility in question nor had executed any document, whatsoever, in the nature of promissory note, letters of hypothecation and guarantees or any other document from which it could be spelt out that he had either applied for the finance facility, had utilized the same or had undertaken to repay the same. He further submitted that it was also established from the material on record that the petitioner was an Honorary President of respondent No,3, which is a Non-Governmental Organization established under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961 (hereinafter referred to as the Ordinance of 1961) and for its running and working was dependent on public subscription, donation or Government aid and further that it were respondents Nos,4 and
5. General Secretary and Treasurer respectively who were managing, looking after and carrying out day-to-day affairs and were also having occupation of the office premises and custody of the fittings, fixtures and other assets of respondent No,3 and had applied for grant/ sanction of finance facility, executed the documents namely. Demand Promissory Note. Letter of Hypothecation and furnished Personal Guarantees for repayment of the said finance facility which facts solely placed responsibility for the repayment of the decretal amount on respondents Nos,4 and 5. Mr. K.M.
12. Samdani further submitted that the trial Court did not take into consideration the aforesaid very material and important questions for determining the liability of the petitioner in respect of the finance facility and for recovery of the decretal amount and in a mechanical and routine manner without giving any justifiable and plausible ground rejected the leave to defend application filed by the petitioner thereby placing him in very awkward and difficult situation of extreme hardship thus entitling him to seek remedy by way of this Constitutional petition in view of the pronouncements made in the cases of Balochistan Trading Company and Mst. Kaniz Fatima (supra).
13. ' We have given our due consideration to the arguments advanced by the learned counsel for the parties. We are in respectful agreement with the pronouncements made by the Supreme Court in the cases of (i) Ghulam Hussain and another v. Malik Shahbaz Khan and another 1985 SCM R 1925 and (ii) Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others PLD 1996 SC 77 which were relied upon by Mr. Badar Alam in support of his contention that the impugned order ought to have been challenged/assailed by way of an appeal under section 22 of the Ordinance of 2001. However, the question to be determined is whether in the presence of the facts and circumstances of the case mentioned hereinabove the petitioner would have been within his right to bypass the remedy of appeal and to have recourse to Article 199 of the Constitution on the ground that he would have to face great hardships, difficulties and burden in having recourse to section 22 of the Ordinance of 2001 as he would have been required to pay court-fee, could have been required to furnish security in the decretal amount inclusive of the costs for admission of the appeal and would have been required to deposit the decretal amount in the Appellate Court for seeking stay of the operation of the impugned order, failing which respondent No,2, HBL would have proceeded in the execution proceedings against him. Such procedure would have amounted to extreme hardship and injustice as the petitioner claimed to have no nexus whatsoever, with the alleged finance facility granted to respondent No,3 M.S.J. Research Institute.
14. ' One of the several grounds raised by Mr. K.M. Samdani was that the remedy provided by section 22(1) of the Ordinance of 2001 by way of appeal against the impugned order was not an adequate and sufficient remedy but was illusory in view of the condition of furnishing security in the amount claimed or the decretal amount for admission of the appeal as such he could bypass the same and approach this Court in its Constitutional jurisdiction. In support of his above contention, he placed reliance on the case of Balochistan Trading Company (Pvt.) Ltd. And another v. National Bank of Pakistan and another 1998 SCM R 1899. His next contention was that where the order was patently illegal, void or wanting in jurisdiction then any further recourse to alternative remedy would be only counter-productive and the aggrieved party could invoke the jurisdiction of this Court under Article 199 of the Constitution for forthwith nipping in the bud the mischief as in such matters neither the alternate remedy would be adequate nor bar the jurisdiction of this Court under a Sub-Constitutional Legislation. For the above, he placed reliance on the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCM R 1881.
15. ' The issue whether requirement or pre-condition in a Statute for providing deposit or furnishing of security by the appellant for admission of the appeal equivalent to the amount claimed or the decretal amount would render the appeal as an inadequate, insufficient and illusory remedy was examined in depth by the Supreme Court in the case of Shaikh C-ulzar Ali Co. v. Special Judge S. Court of Banking 1991 SCM R 590. In that case the Supreme Court had rejected the contention that the pre-condition or requirement of depositing or furnishing security for admission of an appeal, the amount equivalent to the decretal amount provided in section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter referred to as the Ordinance of 1979) would render the remedy of appeal nugatory, inadequate or not efficacious. In the case of Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. And others v. Federation of Pakistan and others PLD 1996 SC 77, the Supreme Court while examining the identical provision of section 9 of the Banking Tribunals Ordinance, 1984 (hereinafter referred to as the Ordinance of 1984) of depositing with the Banking Court the amount claimed in the suit or the decretal amount, observed that such provision was neither ultra virus of the Articles 23, 24 and 25 of the Constitution nor a Constitutional petition against any order, judgment or decree of a Banking Tribunal was competent. However, in the case of Balochistan Trading Company (supra), the Supreme Court on identical facts and circumstances made a pronouncement which was contrary to what was pronounced in the cases of (i) Shaikh Gulzar Ali and (ii) Messrs Tank Steel Re-Rolling Mills (supra) inasmuch as it was held that where a sub-Constitutional law provided for a deposit of the disputed amount, as a pre-condition for the appeal or revision against the order calling for such deposit, Constitutional remedy under Article 199 of the Constitution could be more efficacious and adequate of the remedies and might be resorted to. Two different versions of the Supreme Court are thus available with regard to invocation of the Constitutional jurisdiction of this Court in supersession of the remedy provided in a Statute on the ground of deposit of decretal amount or the amount claimed for availing the remedy, thus rendering it as inadequate, ineffectual and nugatory.
16. ' In the cases of (i) Shaikh Gulzar Ali and (ii) Messrs Tank Steel Re-rolling Mills (supra), the Supreme Court had examined the provisions of section 12 of the Ordinance of 1979 and section 9 of the Ordinance of 1984. In both the aforesaid sections there was a specific provision either for depositing or furnishing of security in the amount claimed or the decretal amount for admission of the appeal. The provision for depositing or furnishing of e. Security in the decretal amount or the amount claimed for admission of the appeal was deleted from section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (hereinafter referred to as the Act of 1997) and there existed only the condition for depositing in cash the amount equivalent to the amount due or at the discretion of this Court furnishing security equal in value to such amount for staying the operation of the impugned order. The Act of 1997 was repealed by the Ordinance of 2001. Section 22 of the Ordinance of 2001 deals with the appeal against the judgment, decree, sentence or final order passed by a Banking Court, which lies to this Court. Subsection (3) of section 22 thereof requires this Court to pass a reasoned order at the stage of admission of the appeal as to whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case and as to the security to be furnished by the appellant. The language of section 22(3) of the Ordinance of 2001 is altogether different from language of section 12 of the repealed Ordinance of 1979 and section 9 of the repealed Ordinance of 1984, wherein specific condition for deposit of the amount claimed or due/ decretal amount was provided for admission of the appeal. Thus, it is to be observed that the pre-condition provided in section 22(3) of the Ordinance of 2001 for admission of the appeal is much easier and softer than the provisions contained in section 12 of the repealed Ordinance of 1979 and section 9 of repealed Ordinance of 1984. It will be useful if the three sections namely, section 12 of the repealed Ordinance of 1979, section 9 of the repealed Ordinance of 1984 and section 22(3) of the Ordinance of 2001 are reproduced to have a clear understanding of the provisions contained therein as to whether the provisions of section 22(3) of the Ordinance of 2001 would amount to imposition of a condition which would fall within the mischief of the condition envisaged by the Supreme Court in its pronouncement in the case of Balochistan Trading Company (supra) so as to enable the petitioner to have recourse to this Constitutional petition in preference over the remedy for appeal provided.
17. The three aforesaid sections are reproduced hereinunder:-- ' Section 9 of the Ordinance of 1984 ' Any person aggrieved by an order of the Banking Court passed under subsection (4) or subsection (5) of section 6 or a decree or sentence passed under this ordinance may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court.
18. ' Section 12(5) of the Ordinance of 1979 ' No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment-debtor, at the discretion of the High Court, furnishes security equal in value to such amount.
19. ' Section 22(3) of the Ordinance of 2001 ' The High Court shall at the stage of admission of the appeal or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant.
20. ' From a bare perusal of the aforesaid sections, it can be said without any doubt that the provisions of section 22(3) of the Ordinance of 2001 are not as stringent and harsh as were in the earlier Statutes relating to the recovery of the loans/advances of the financial institutions and it cannot be said that the pre-condition of furnishing of security for which a reasoned order will have to be made by this Court in its capacity as the Appellate Authority would automatically render the remedy of the appeal as nugatory, inefficacious and inadequate. The provisions of section 22(3) have given vast power to the Appellate Court for stating or declaring the reasons and conditions for furnishing the security. The Appellate Court after taking into consideration the facts and circumstances of each case and examining the extent of liability of the aggrieved party will be absolutely free to determine easy and soft terms for furnishing of security.
21. ' The maintainability of this Constitutional petition is also rendered doubtful on another ground namely, where a Statute provides a self-contained machinery for determination of, questions arising under the Statute and it also provides remedy by way of appeal or revision to another Tribunal or Court. Fully competent to give any relief, then an indulgence by this Court in accepting a Constitutional petition for assailing an impugned order passed by Tribunal or Court in contravention of the provisions made in the Statute will produce a sense of distrust in Appellate Forum/ Court provided by the Statute. In such circumstances, a Constitutional petition would not be maintainable and it will be imperative for the aggrieved party to resort to the remedy of appeal provided under the Statute. A pronouncement to the above effect was made in the case of Mst.
22. Kaniz Fatima v. Muhammad Saleem and 27 others 2001 SCM R 1493 and it will be appropriate to reproduce the relevant portion from the cited judgment appearing on page 1504, as under:-- ".. By now it is well-settled that where a particular statute provides a self-contained machinery for the determination of question arising under the Act as and where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunals. Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie."
23. ' Another aspect which will require to be looked into in deciding whether the petitioner will be entitled to have recourse to Article 199 of the Constitution and entertainment of a Constitutional petition in supersession of the remedy of appeal or it will be governed by a different yardstick on .The ground that where the appellate or revisional authority under a particular Statute for filing an appeal or revision against an order passed thereunder is this Court. In such a situation, this Court will not allow its appellate or revisional jurisdiction to be side-tracked for entertaining a Constitutional petition by the aggrieved party and will insist that the provision of the Statute for filing the appeal or revision notwithstanding the precondition or requirement of furnishing security or depositing the amount claimed or the decretal amount in the Appellate Court for admission of the appeal be adhered to. This aspect was considered at great length by the Supreme Court in the case of Khalid Mehmood v. Collector of Customs (supra) and it was categorically observed that in matters where this Court itself was the repository of the ultimate appellate, revisional or referral power, which were conferred by the relevant statute then it was in the rarest of cases that this Court would be persuaded to entertain a Constitutional petition and to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time. It will be appropriate to reproduce the relevant portion from 'the cited judgment as under:-- ' Page 1887 "... More or less a similar principle applies where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate or revisional jurisdiction to the High Court itself.
24. Obvious examples could be civil and criminal proceedings, emanating under the Code of Civil and Criminal Procedure, Income Tax References, Customs Appeals etc. In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the relevant Statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional petition and to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time. Some discussion on the point is to be found, regarding income-tax matters and the alternative remedy of a reference, which lies in a High Court under section 136 of the Income Tax Ordinance, 1979.
25. ' Relevant to Customs disputes, mention may be made to the comparatively recent development in the way of an amendment, effected through the Finance Act, 1997, introducing section 196 of the Customs Act, 1969, whereby a final appeal has now come to be postulated to lie in the High Court to be heard by a Bench of not less than two Judges. The outcome is obvious namely, that, following upon the amendment, the High Court shall be ever more circumspect in directly entertaining Constitutional petitions touching outcome controversies and, instead, prefer its own normal appellate jurisdiction to be invoked in due course. As regards the appeals and revisions contemplated by and under the Codes of Civil and Criminal Procedure there is a plethora of precedent, contemplating that the High Court, itself being the Court of final resort under such statutes, should be extremely slow in allowing its own general jurisdiction to be side-tracked and rendered ineffective in matter overstretched to be tackled on the Constitutional plane.
26. ' To sum up, therefore, the High Court in the circumstances, should have declined to say anything on merits of the dispute and preferred to non-suit the petition on the sole ground of maintainability."
27. ' With regard to contention that the impugned order was unlawful, in illegal exercise of jurisdiction, contrary to the material/evidence on record and void ab initio, as a result of which it could be challenged directly by invocation of Article 199 of the Constitution in view of the principle enumerated in the case of Mst. Kaniz Fatima (supra), it is to be noted that the above observation of the Supreme Court was qualified by the condition that the controversial question be decided without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. In addition, the Supreme Court further observed that where law provided a remedy a of appeal or revision to another Tribunal fully competent to give any relief then indulgence to the contrary by this Court was bound to produce a sense of distrust in Statutory Tribunal. This is applicable with greater impact in the present case as the Appellate forum is none other but this Court. In the case of Ch. Muhammad Ismail v. Fazal Zada PLD 1996 SC 246 the Supreme Court observed that passing of an order in contravention of the provisions of law by a forum having territorial and pecuniary jurisdiction to decide the matter would not be a case of usurping jurisdiction but would be a case of wrong exercise of jurisdiction and further that such wrong exercise of jurisdiction could neither be equated with want of jurisdiction nor would give right to the aggrieved party to bypass the Statutory remedy and opt for the Constitutional jurisdiction of this Court.
28. ' Mr. K.M. Samdani had also contended that the proviso to subsection (3) of section 22 of the Ordinance of 2001 laying down the condition of depositing in cash with this Court an amount equivalent to the decretal amount inclusive of costs was also a hurdle in the way of the petitioner to have recourse to section 22 of the Ordinance of 2001 as without depositing the amount equal to the decretal amount inclusive of costs the Appellate Court will not stay the operation of the impugned judgment and the decree and in the absence of suspension of the impugned order the purpose of the appeal will be defeated as respondent HBL will proceed to execute the decree against the petitioner. This contention is without any substance in view of the observations of the Supreme Court in the case of Balochistan Trading Company (supra) that the provision for depositing the decretal amount for granting stay contained in the repealed Act of 1997 was similar to the like restrictions contained in Order XLI, Rule 5, C.P.C. Like or similar restrictions contained in Order XLI, Rule 5, C.P.C. Have been in existence since a very long time, but such restrictions have never been held to be causing a hurdle or hindrance in the right of an aggrieved party preferring an appeal in accordance with the provisions of the Civil Procedure Code. In the circumstances, the proviso to section 22(3) of the Ordinance, 2001 can by no stretch of imagination be said to be curtailing or hindering the right of appeal, so as to enable petitioner to bypass the remedy of appeal provided by section 22 of the Ordinance of 2001 and to invoke Constitutional jurisdiction of this Court for assailing an order, which otherwise will be assailable by way of appeal under section 22 of the Ordinance, 2001.
29. ' For the foregoing facts, reasons and discussion, this Constitutional petition is found to be misconceived and not maintainable. Accordingly, it stands dismissed in limine alongwith the miscellaneous applications pending therein with no order as to costs.