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High Court Appeal No.94 of 1987, decided on 24th .august, 1987.

---Ss.2(f) & 12(1)--Civil Procedure Code (V of 1908),O.XXXVII, R.3--Appeal--If an appeal is to be filed against an order passed under provisions of Ordinance XIX of 1979 by High Court (as a Special Court) embargo contained in proviso to subsection (1) to S.12 of said Ordinance, held, would be attracted.

---S.2 cl. (f), (ii)--Special Court--Notification--No notification, held, was required to be issued notifying High Court as a Special Court Deliberate omission to provide for notification under sub-clause (ii) of cl. (f) of S.2 of Ordinance in relation to High Court manifested that law makers wanted to make a distinction between High Court when it was to act as a Special Court and a District Judge or Additional District Judge who was to be notified as a Special-Court.

Abdul Rauf for the Appellants.

--This High Court Appeal is directed against an order dated 7-4-1987 passed by a learned' Single Judge on Civil Miscellaneous Application No. 2201 of 1985 in suit No. 821 of 1984 granting conditional leave to defend on furnishing security of Rs.30,28,875 within a period of four weeks under Order XXXVII, Rule 3, C.P.C. against the suit amount of Rs.64,13,288 filed under the Banking Companies (Recovery of Loans) Ordinance, 1979, hereinafter referred to as the Ordinance. The appellants being aggrieved by the above order have filed the present appeal.

It was pointed out to Mr. Abdul Rauf learned counsel for the appellants that in view of proviso to subsection (1) of Section 12 of the Ordinance, which provides that "no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court", the appeal is not competent as has been held inter. alia, in the judgment dated 30-4-1987 given by a Division Bench of this Court in High Court Appeal No.90 of 1986 (M/s. Atamaqbool Industries Ltd. and others v. Allied Bank of Pakistan Ltd.). However, it was submitted by Mr. Abdul Rauf that in view of the definition of the Special Court given in Section 2(f) of the Ordinance the High Court cannot be said to be Special Court and, therefore, the embargo in the above quoted proviso is confined to the Special Court. It may be advantageous to reproduce hereinbelow clause (f) of Section 2 of the Ordinance, which reads as follows:

'Special Court' means-

(i) in respect of a case in which the outstanding amount of the loan does not exceed one million rupees, or the trial of offences punishable under this Ordinance, a person who is or has been a District Judge or an Additional District Judge and is appointed by the Federal Government, by notification in the official Gazette, to be a Special Court to exercise jurisdiction within such territorial limits as may be specified in the notification, and, in the absence of such appointment, the District Court, and

(ii) in respect of any other case, the High Court in the exercise of original civil jurisdiction."

A perusal of the above quoted clause indicates that for the purpose of the Ordinance in the definition of the Special Court under sub-clause (ii) of clause (f) of above section 2, the High Court has been included. It must follow that if an appeal is to be filed against an order passed under the provisions of the Ordinance by the High Court, the above embargo contained in the above proviso to subsection (1) of section 12 of the Ordinance will be attracted to. The appellants by not quoting the above section of the Ordinance in the memo of appeal cannot negate the above prohibition contained in the above proviso.

Then it was contended by Mr. Abdul Rauf that there is no notification issued notifying the High Court as a Special Court. The above contention is contrary to the above quoted provision of clause (f) of section 2 of the Ordinance. It has overlooked the factum that under sub-clause (i) of clause (f) of section 2, a notification is to be issued, whereas under sub-clause (ii) of clause (f) which pertains to High Court no notification is required to be issued. The deliberate omission to provide notification under above sub-clause (ii) of clause (f) in relation to the High Court manifests that the law-makers wanted to make a distinction between the High Court when it was to act as a Special Court on the one hand and a District Judge or Additional District Judge who was to be notified as a Special Court.

In the above referred unreported judgment in the case of M/s. Atamaqbool Industries Ltd. and others v. Allied Bank of Pakistan Limited, a number of cases have been referred to in support of the conclusion which we are inclined to take in the present case.

The appeal has, therefore, no merits. It is dismissed in limine.

These are the reasons in pursuance of a short order of even date.

M. Y. H./I-26/K Appeal dismissed.

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