1. ' ANWAR ZAHEER JAMALI, J.---These two Civil Revision Applications under section 115, C.P.C. Are directed against the orders dated 28-2-2002 and 12-4-2002 passed by Banking Court No, V, Karachi, whereby two applications, one under Order 1, rule 10, C.P.C. And other under Order 6, rule 17, C.P.C., separately moved by the appellants in Suits Nos,237 and 249 of 2001 were dismissed by identical ordeRs, Since the facts and law points involved are common in both the appeals, same are being disposed of by this single order.
1. We have heard learned counsel for the parties and perused the case record. It seems that while passing the impugned orders learned Judge Banking Court did not advert to the fact that criteria for bringing on record the A legal heirs of deceased defendant under Order 22, rule 4, C.P.C. And for joining some legal heir of a deceased defendant as party to the suit within the scope of Order 1, rule 10, C.P.C. Are different. There is no cavil to this legal position that in case suit has been instituted against a B dead person then by bringing his legal heirs on record in terms of Order 22, rule 4, C.P.C.
2. Such defect cannot be cured, but in a case where claim made in a suit for recovery of sum due against the deceased defendant, subject to other legal limitations, can be recovered from his legal heir(s) then independent of the requirement of Order 22, rule 4, C.P.C. Such legal heir(s) can be joined as C party to the suit in a similar manner as if when the proposed defendant to a suit has died before institution of the suit then such suit can be brought against him through his legal heiRs, This legal position is amplified in the case of Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others 1993 SCMR 1185. In the instant case as per the claim of the appellant Bank defendant No,7 was co-mortgagor/co-owner of immovable property which was mortgaged with the appellant-Bank. In such circumstances, after the demise of defendant No,7, whatever right she had in the mortgaged property, same had devolved upon her legal heirs, including proposed defendant Ms. Lubna Jamil Horani. Thus, request of appellant for joining Ms. Lubna Jamil as defendant in the suit being necessary and proper party to the suit within the scope of Order 1, rule 10, C.P.C. Was legal and tenable. Similarly the corresponding amendments sought in the plaint of the suit as prayed in the application under Order 6, rule 17, were neither going to change the nature or character of the suit nor by such amendments any prejudice was likely to be caused to the opposite-party.
2. In view of the above discussion, we find that the two orders impugned in these two civil revision applications not only suffer from illegality and material irregularity, but same are also without jurisdiction, thus, liable to be corrected/set aside in exercise of powers vested with this Court.
3. Accordingly, these revision applications are allowed, the impugned orders dated 28-2-2002 and 12-4-2002 'passed in Suits Nos,237 and 249 of 2001 are set aside and the applications under Order 1, rule 10, C.P.C. And under Order 6, rule 17, C.P.C. Moved by the appellants before the Banking Court are allowed as prayed. Amended memo. Of plaint be filed before the Banking Court within one month.
3. Foregoing are the reasons for the short order passed today whereby these civil revision applications were allowed.
4. ' KHILJI ARIF HUSSAIN, J.---I have gone through the order of my learned brother Anwar Zaheer Jamali, J. As well as the judgments in the cases of Mst. Afshan Ahmed v. Habib Bank Ltd. 2002 CLD 137 and Central Cotton Mills Ltd. And others v. Atlas BM' Lease Co. Ltd and 2 others 1998 SCMR 2352 and with great respect and with all humility I would like to add few lines.
5. ' Briefs facts to appreciate points involved in the matter are that the applicant-Bank filed the suit before the Banking Court No,V, Karachi under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) for recovery of Rs,63,36,152.42 against the respondents. In the memo. Of the plaint the applicant stated that the applicant-Bank granted/ Demand Finance and Running Finance facilities to the respondents. In order to secure finance used and utilized, the respondents Nos,1, 2, 5 to 9 mortgaged their properties. Respondents Nos,1 to 6, 8 and 9 filed leave to defend application. From the said application for leave to defend filed by the said respondents it came to the knowledge of applicant that the respondent No,7 had expired prior to filing of the suit. The applicant thereupon filed an application under Order 1, rule 10, C.P.C. To delete the name of respondent No,7 MRs, Hafiza Noorani and to join Lubna Jamal Noorani being one of the legal heirs of late respondent No,7. In the application it was also stated that the respondent/defendant No,2 husband of the deceased respondent No,7 is already on record. After hearing the parties the Banking Judge dismissed the application holding that since the defendant No,7 had died much prior to the filing of the suit as such suit could not have been filed against a dead person and consequently the question of bringing the legal heirs of the said deceased defendant does not arise.
6. ' The applicant aggrieved from the said order filed civil revision under section 115, C.P.C. We have heard Mr. Badar Alam, Advocate for the applicant and Mr. Azhar Faridi, Advocate for the respondents and vide a short order dated 11-3-2003 set aside the order passed by the Banking Court.
7. ' The point, which requires consideration, is whether a revision under section 115 of Civil Procedure Code is maintainable against an order passed by the Banking Court.
8. ' Section 22 of Ordinance XLVI of 2001 provides that subject to subsection (2), any person aggrieved by any judgment, decree, sentence or final order passed by a Banking Court may, within 30 days of such judgment, decree, sentence or final order can prefer an appeal to the High Court. Subsection
(6) of section 22 is proviso to section 22, which provides that 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 according to which if it has not disposed 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 of the said Ordinance.
9. ' Almost a similar section was incorporated in the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) but with the meaningful difference. Section 21 of Act XV of 1997 provides appeal against decree or an order refusing to set aside the decree or an order permitting sale of property or a sentence passed by the Banking Court established under section 4. When we read section 21 of the Act XV of 1997 and compare it with section 22 of Ordinance XLVI of 2001 the significant intention of the Legislature can be seen.
10. Section 22 of Ordinance XLVI of 2001, provides for appeal against final order apart from judgment and decree, whereas under section 21 of Act XV of 1997 provided appeal only against the decree or an order refusing to set aside the decree. Before I discuss case-law on the subject I would like to discuss the case of Messrs Afshan Ahmed and Messrs Central Cotton Mills.
11. ' In the case of Messrs Afhsan Ahmed the Bank had filed suit against the deceased father of the petitioner alongwith other respondents. The petitioner filed an application under Order 1, rule 10, C.P.C. With a prayer for deleting the name of her deceased father. After having information about the death of the father of the petitioner, the learned Single Judge ordered to join petitioner as defendant in place of her late father calling upon her to give the name of other legal heirs of her deceased father M.B. Ahmed. Aggrieved by this order the petitioner filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan. With this background the learned Division Bench dismissed the petition that petition against an interlocutory order is not maintainable. The learned Advocate for the petitioner made an oral request for treating the petition as a revision application which was also declined by the Honourable Bench with an observation that the period of filing the revision at the time when the petition was filed had already expired and while not accepting the request of petitioner's Advocate it was also observed that the impugned order being an order under the provisions of C.P.C. And not under the, said Act could have been challenged under section 115 of Civil Procedure Code in view of the observations of Honourable Supreme Court in the case of Messrs Central Cotton Mills. In the case of Messrs Central Cotton Mills Ltd., the petitioner filed an application under section 12(2) of the Civil Procedure Code for setting aside a compromise decree on the ground that the same has been obtained by fraud. The Banking Court constituted under Banking Tribunals Ordinance LIII of 1984 dismissed the application with the observation that .There was nothing wrong or illegal in the compromise arrived at between the parties and against the said order based on the application under section 12(2), C.P.C., the petitioner filed Constitution petition which was dismissed in limini. The petitioner preferred petition before the Honourable Supreme Court and while dismissing the petition for leave to appeal the Honourable Supreme.
12. Court observed that the High Court dismissed the Constitutional petition on the ground firstly that there exists remedy by way of appeal under section 9 of the Banking Tribunals Ordinance against the dismissal of application filed under section 12(2), C.P.C., secondly section 10 of the said Ordinance provides that said order against which parties are aggrieved cannot be challenged or called in question in any proceeding except by an appeal under section 9 and while analyzing the order of Honourable High Court in said petition an observation was made by the Honourable Supreme Court that "even if matter was considered from the angle of the applicability of the Civil Procedure Code, then also a revision application could have been filed against the said order.
13. ' In my humble opinion in both the above cited cases the Honourable Supreme Court has not laid down principle of law holding that an order passed by the Banking Court rejecting or accepting an application filed under any provision of Civil Procedure Code can be impugned by way of revision under section 115 of the Civil Procedure Code. I would like to mention here that although Messrs Central Cotton Mills Ltd.'s case has been reported in the year 1998 but said petition was decided by the Honourable Supreme Court on 28-2-1996. In the case of Bolan Bank Ltd. v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961, the Honourable Supreme Court noted the contention of the learned Advocate that under section 21 of Act XV of 1997 no appeal or review or revision shall lie against interlocutory order of Banking Court. In the case of Pakistan Fisheries Ltd., Karachi and others v.
14. United Bank Ltd. PLD 1993 SC 109, the Honourable Supreme Court held that the appeal is maintainable only against the final order passed by the Banking Court deciding the entire case as under:-- "It is clear to us that in clause (a) the word 'case' means to 'suit' pending in the High Court in exercise of its original civil jurisdiction before the promulgation of the Ordinance, which under the clause had to be continued to be heard and decided by the High Court. We have no doubt that the word `case' appearing in this clause signifies suit and not some controversial matter arising out of or forming part of the 'suit'. Section 3 expressly lays down that the provisions of the Ordinance, are in addition to and not in derogation of any law for the time being in force. Section 6 refers to the powers of the Special Court, and provides that in exercise 'of its civil jurisdiction under the Ordinance a Special Court has all the powers vesting in a Civil Court under the Code of Civil Procedure. The combined reading of these two sections demonstrates that such provisions of the Code of Civil Procedure which are not in conflict with the Ordinance can well be enforced by the Special Court. The concept that there are certain orders which dispose of the entire suit and there is another category of orders which are interlocutory in character and do not dispose of the entire suit, may it he called a case, is not alien to the Code of Civil Procedure. An example of order which disposes of the entire case, would include order rejecting the plaint on any of the grounds mentioned in Order VII, rule 11, C.P.C. When a party from whom written statement is required, fails to present the same within the time fixed by the Court, pronouncement of judgment under Order X, rule 11, C.P.C. On the failure of a party to appear in person in the Court without lawful cause, when directed by the Court to do so; dismissal of suit for want of prosecution and striking out of the defence of the defendant under Order XI, rule 21, C.P.C. For non-compliance with the orders of the Court for personal appearance; pronouncement of judgment under Order XVI, rule 20 as consequence of refusal of a party to give evidence when called on by the Court. For the purposes of the Ordinance, an interlocutory order may be described as the Order, which is incidental to or a step in aid of the final decision of the suit. In this category would fall the orders such as an order under Order I, rule 10, C.P.C., impleading or refusing to implead a party as plaintiff or defendant as the case may be, allowing or refusing to allow an application for amendment of the pleadings under Order VI, rule 17, C.P.C; an order under Order XXVI, rule 9, C.P.C. Regarding issuing or refusing to issue a Commission also follows the same wake. Such instances can be multiplied. The category of orders is hit by the proviso and is not appealable. Clauses (b) and (d) ibid refer to a class of the orders falling in the first category. On the other hand clause (d) and the proviso to section 12(1) would embrace an order of the type of the second category. As a result of this analysis we are firmly of the view that the word `case' has been used in the proviso in the sense of a suit and not to convey the meanings canvassed by the learned counsel on the analogy of section 115, C.P.C. The orders of the learned Single Judge were thus not appealable."
15. ' The principle laid down by the Honourable Supreme Court in the above matter is that an order passed by a Court on an application under Order I, rule 10 impleading or refusing to implead a party as plaintiff or defendant as the case may be, held to be an order, which is incidental to or step in aid of the final, i,e, an interlocutory order. The Honourable Court further held that the word case' has been used in the proviso in the sense of suit and not to convey the meaning conveying by the learned counsel on the analogy of section 115, C.P.C. (Underlined are mine). The above matter has been decided by the Honourable Supreme Court while interpreting Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), section 12 of Ordinance XIX of 1979 was identical to section 21 of the Act 1997 and section 22 of Ordinance 2001. In the case of Muhammad Ayub Butt v. Allied Bank Ltd. PLD 1981 SC 359 the Honourable Supreme Court held that the Banking Court is not a subordinate Court to High Court for the purposes of section 115 of C.P.C.
16. In the case of Shah Jewana Textile Mills v. United Bank Ltd. PLD 2000 Lahore 162, the Lahore High Court held that no application for review can be entertained by the Banking Court as Banking Court has no jurisdiction to review the judgment, decree or order passed by it.
17. ' In view of the bar of filing the review, revision or appeal against an interlocutory order and further finality attaches to an order/judgment passed by the Banking Court under section 27 of Ordinance LIII of 2001, in my humble view perhaps application is not maintainable against an order/judgment passed by the Banking Court. The Ordinance XLV of 2001 itself provides a mechanism for challenging decree/judgment/order subject to which a decree/judgment/order passed is deemed to be final and could not be challenged by invoking remedy under any other law. Section 7 of Ordinance XLV 'of 2001 provides that the Banking Court shall in exercise of its civil jurisdiction have all powers vested in the Civil Court under the Code of Civil Procedure, 1908 but subject to provisions of Ordinance and while acting as Banking Court, the Banking Court does not act as a Court subordinate to High Court in terms of section 3 of Civil Procedure Code. I would like to add here that even when a Judge of the High Court passes an order while dealing with the matter under Ordinance XLVI of 2001, acts as Banking Court and not in its ordinary jurisdiction. My view finds support from the judgment passed in the case of Pakistan Industrial Credit and Investment Corporation Ltd., Peshawar Cantt. And others v. Government of Pakistan 2002 SCMR 496. In this matter against the order passed by Banking Court, revision applications were filed before Lahore High Court with prayer that if revision applications are not maintainable then same may be treated as appeal and same were dismissed in limine by the Lahore High Court. Against said judgments appeals were filed before the Honourable Supreme Court and in detailed judgment while accepting the appeals the Honourable Supreme Court remanded the matter to High Court as appeal and not as revision holding that an order passed under section 18(6) of the Act is an appealable order under section 18(5) of the Act XV of 1997.
18. ' In view of the above with some reservations about the maintainability of the revision under section 115, C.P.C. Against an order passed by Banking Court in exercise of its jurisdiction under Ordinance XLVI of 2001, I concur with the observations of my learned brother Anwar Zaheer Jamali, J. That order impugned suffers from illegality and the same is set aside.