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High Court Appeal No.41 of 1987, decided on 14th March, 1987.

‑‑‑S.12(1), proviso‑‑Right of appeal against an interlocutory order is expressly barred by S.12(1), proviso.

Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others P L D 1981 S C 359; Bank of America v. Alam and Bros. and 6 others 1984 C L C 3393; Habib Bank Ltd. and 2 others v. Karachi Properties Investment Co. Ltd. and 4 others P L D 1984 Kar. 257 and Oriental Fashions Ltd. and 4 others v. National Bank of Pakistan P L D 1985 Kar. 178 ref.

‑‑‑S.12(1), proviso‑‑Civil Procedure Code (V of 1908), S.115‑ Interpretation of words "case decided" employed in S.115‑‑Interpretation of words "case decided" employed in S.115, C.P.C. cannot be pressed into service for the purpose of interpretation of S.12(1), proviso of the Ordinance, 1979‑‑[Interpretation of statutes].

A comparison of section 115, C.P.C. with subsection (1) of section 12 of the Ordinance XIX of 1979 makes it clear that in the former the words employed are "any case which has been decided" whereas in the proviso the words used are "an interlocutory order which does not dispose of the entire case before the Special Court". The use of the words "the entire case before the Special Court" is of significance. It contemplates that nothing for decision should be left before the Special Court. Under the Ordinance the Special Court is not only a Court for trial of civil cases but is also a criminal Court inter alia for the purposes of offences mentioned in section 9 of the Ordinance. The words "the entire case" have been used in the proviso evidently with the object to cover civil as well as criminal cases. This conclusion is also supported by the wordings of subsection (1) of section 12 of the Ordinance, which provides that any person aggrieved by any order, judgment, decree or sentence of a Special Court may .... prefer an appeal. The interpretation of the word "case decided" employed in section 115 of the Civil Procedure Code cannot be pressed into service for the purpose of interpretation of the proviso to subsection (1) of section 12 of the Ordinance.

S.Zafar Ahmad v. Abdul Khaliq P L D 1964 (W.P.) Kar. 149; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97; Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others P L D 1973 S C 507; Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 S C M R 221 and Bank of America v. Alam and Brothers and 6 others 1984 C L C 3393 ref.

‑‑‑Ss.ll & 12‑‑Finality of order‑‑Appeal‑‑Merely the fact that Court has not exercised discretion in the manner in which the law required, would not create a right of appeal under S.12, particularly in presence of express prohibition‑‑Right of appeal is a substantive right, which cannot be claimed unless it is expressly so provided under relevant law.

Azmat Wali v. Hassan AI‑Adawi and 2 others 1983 C L C 546 and Abdul Karim Jaffarani v. United Bank Ltd. and 2 others 1984 SCMR 568 ref.

J.H. Rahimtoola for Appellant.

Irtiza Hussain Zaidi for Respondents.

Date of hearing: 6th April, 1987.

‑‑This High Court Appeal is directed against an order dated 1‑3‑1987 passed in Suit No.98 of 1985 whereby a learned Single Judge of this Court has granted permission to the appellants to defend the suit on furnishing surety in the sum of Rs.1.5 million to the satisfaction of the Nazir of this Court within a period of four weeks.

2. The brief facts leading to the filing of the above appeal are that respondent No.l Bank filed aforesaid suit under sections 6 and 7 of the Banking Companies (Recovery of Loans) Ordinance, 1979, hereinafter referred to as the Ordinance, for the recovery of a sum of Rs.44,67,490.35 against 8 defendants, which include a private limited company as defendant No.l and defendants Nos.2 to 8 as shareholders and Directors as well as guarantors. The two appellants applied for leave to defend which was granted subject to furnishing of the surety in the aforesaid sum instead of total suit claim. The appellants being aggrieved by the above order have filed the present appeal.

3. We had called upon Mr. J. H . Rahimtoola, learned counsel for the appellants to satisfy us, on the question, as to how the above appeal is competent in view of proviso to subsection (1) of section 12, hereinafter referred to as the proviso which provides that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. In reply to the above query Mr. J.H. Rahimtoola has urged as follows:‑---

(1) That there is a difference between a suit and a case.

(2) That since the words employed in the proviso are "the entire case" and not "the entire suit" the decision on an application under Order XXXVII, Rule 3, C.P.C. Is a decision of the case and, therefore, the bar is not attracted to.

(3) Finality to an order under section 12 of the Ordinance is attached only to those orders, which are in accordance with law and not to an order which is not in consonance with the propositions of law laid down by the superior Courts.

(4) That in the instant case the appellants have good case for unconditional leave which has been denied, and, therefore, the order is not in accordance with law.

4. Before dilating upon the above contentions, it may be advantageous to reproduce hereinbelow section 12 of the Ordinance which reads as follows:‑

"12. Appeals.‑‑(1) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within 30 days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed:

Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.

(2) An appeal under subsection (1) shall be on any one of the following grounds, namely:‑

(a) the decision being contrary to law or to some usage having the force of law, or

(b) the decision having failed to determine a material issue of law or usage having the force of law, or

(c) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits.

(3) An appeal may be preferred under this section from decision made ex parte.

(4) An appeal under this section shall be heard by a Bench of not less than two Judges.

(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount.

5. A perusal of the above section indicates that an aggrieved person can file an appeal within 30 days against any order judgment, decree or sentence of a Special Court, whereas in subsection (2) the grounds on which the appeal can be maintained are spelt out. The other sub‑sections need not be dealt with as they are not in issue.

Mr. J.H. Rahimtoola learned counsel for the appellants as well as Mr. Zaidi learned counsel for the respondent‑Bank have referred to the following cases, in which the question of right to file an appeal against an interlocutory order under section 12 of the Ordinance have been dealt with directly or indirectly by the superior Courts:

(1) Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others reported in P L D 1981 SC 359, in which the Honourable Supreme Court while dealing with the question, whether a revision was competent against an order passed by a Special Court under the Ordinance has also touched upon the question of maintainability of an appeal against an interlocutory order. In this regard it may be pertinent to reproduce the relevant observations which read as under:‑--------

"In support of these petitions for leave to appeal Mr. Hidayatullah Khan has mainly submitted that the provisions of section 13 of the Ordinance have not been given due consideration by the learned Judges of the High Court. This provision deals with the pending cases and pending appeals. We have perused this provision but do not think that it lends any assistance to the point being pressed before us. The case of the petitioner before us is that a revision petition under section 115 of the C . P . C . could be filed against tile interlocutory order of the Special Judge in this case because this order was passed in relation to a matter which was pending before the Civil Courts before the enforcement of the Banking Companies (Recovery of Loans) Ordinance XIX of 1979 and was transferred to it as a result of this provision. Reliance, for the submission, that in these circumstances a Revision under section 115, C.P.C. would be competent, is placed upon the provisions of section 3 of the Ordinance and it is submitted that this provision shows that the provisions of the Civil Procedure Code continued to be applicable. But as discussed above, already the provisions of the Civil Procedure Code continue to apply to the extent that they have not been ousted by the provisions of sections 11 and 12 which effectively bar appeals etc. of interlocutory orders. Thus, even without the specific ouster of the provision of the section 115 of the Civil Procedure Code an interlocutory order cannot be challenged. It seems to us that with a view to securing expeditious disposal of cases by a special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decisions of the Special Court should be open to appeal before the High Court. This is evident from subsection (1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court. Thus, on consideration of the provisions of the Ordinance itself, the revisional jurisdiction of the High Court in regard to such orders is excluded."

(2) Bank of America v. Alam & Bros. and 6 others reported in 1984 C L C 3393. In the above case a Division Bench of this Court dismissed an appeal filed under section 12 against an interlocutory order whereby the Special Banking Court dismissed an application under section 151, C.P.C. for the appointment of a Commissioner for the purposes specified therein. It was held that since the order under appeal had not disposed of the entire case before the Special Court the appeal was not competent in view of the proviso.

(3) Habib Bank Ltd. and 2 others v. Karachi Properties Investment Co. Ltd. and 4 others reported in P L D 1984 Kar. 257 in which a learned Single Judge of this Court held that the High Court while exercising jurisdiction as a Special Court under the Ordinance will follow procedure prescribed therein and not that under C.P.C.

(4) Oriental Fashions Ltd. and 4 others v. National Bank of Pakistan reported in P L D 1985 Kar. 178. In the above case a constitutional petition was filed for impugning the grant of conditional leave by the Special Court. It was canvassed at the Bar that since no appeal was competent against an interlocutory order, the only remedy available was by way of a constitutional petition. It was held that the factum that no right of appeal was provided under the relevant law or that it expressly bars a right of appeal could not by itself justify invoking the constitutional jurisdiction.

The ratio decidendi of the above‑cited cases seems to be that the right of appeal against an interlocutory order is expressly barred by the proviso to subsection (1) of section 12 of the Ordinance. However, Mr. J.H. Rahimtoola has ingeniously attempted to distinguish between a suit and a case. It is true that a suit has a definite connotation in the legal parlance and refers to a civil proceeding which is registered as a suit under the Civil Procedure Code or by virtue of some other legal provision in the relevant statute. For example an application under section 20(2) of the Arbitration Act is to be registered as suit by virtue of the said provision in the said Act, whereas the word 'case' has a wider connotation and it includes not only a suit but all other civil and criminal proceedings.

Mr. J.H. Rahimtoola in furtherance of his above submission has referred to section 115, C.P.C. and the judgments on the interpretation of the words 'case decided' used therein. The words 'case decided' have been construed as to include a decision on an application in a pending suit inter alia in the following cases:

(1) S. Zafar Ahmad v. Abdul Khaliq reported in P L D 1964 (W.P.) Kar. 149.

(2) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies reported in P L D 1964 SC 97.

(3) Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others reported in P L D 1973 SC 507.

(4) Abdul Aziz Shah and another v. Abdul Ghafoor and another reported in 1985 S C M R 221.

In the above cases a decision on an application has been held a case decided for the purposes of section 115, C.P.C. This very argument was advanced in the above‑cited case of Bank of America v. Alam and Bros. and 6 others reported in 1984 C L C 3393 and a number of cases were cited including of the superior Courts of Pakistan and of Indian jurisdiction on the interpretation of the words 'case decided' used in section 115, C.P. C. The above argument was repelled by Division Bench of this Court to which one of us (Ajmal Mian, J.) was a member, in the following words:--

"In our view, the above cases have no application to the instant case. There cannot be any cavil to the propositions that the words 'case decided' used in section 115, C.P.C. will include a decision of an application. It may be observed that there was some controversy as to the construction of the words 'case decided' but the preponderance of the view has always been in Indo‑Pak during pre‑partition period that the above phrase is of wide import as to include an interlocutory order on an application in order to attract supervisory jurisdiction of the High Court under section 115, C.P.C. In Pakistan this controversy has been settled inter alia by the above Full Bench case of the West Pakistan High Court and also by the above case of the Supreme Court of Pakistan. In section 12 of the Ordinance, if there would not have been the above proviso to subsection (1), the above‑cited cases on section 115, C.P.C. would have relevancy to the point in controversy but the proviso which provides as observed hereinabove that no appeal shall lie from an interlocutory order, which does not dispose of the entire case before the Special Court, has made the above‑cited cases on section 115, C.P.C. irrelevant."

In order to highlight the above point it may be advantageous to reproduce hereinbelow section 115, C.P.C. which reads as follows:‑----

"115. Revision.‑‑ (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears.‑

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.

(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.

6. A comparison of the above‑quoted section 115, C.P.C. with the above‑quoted subsection (1) of section 12 of the Ordinance makes it clear that in the former the words employed are 'any case which has been decided' whereas in the proviso the words used are 'an interlocutory order which does not dispose of the entire case before the Special Court." The use of the words 'the entire case before the Special Court is of significance. It contemplates that nothing for decision should be left before the Special Court. It may also be pointed out that under the Ordinance the Special Court is not only a Court for trial of a civil cases but is also a criminal Court inter alia for the purposes of offences mentioned in section 9 of the Ordinance. The words 'the entire case have been used in the proviso evidently with the object to cover civil as well as criminal cases. This conclusion is also supported by the wordings of subsection (1) of section 12 of the Ordinance, which provides that any person aggrieved by any order, judgment, decree or sentence of a Special Court. We are, therefore, of the view that the cases relied upon by Mr. J.H. Rahimtoola on the interpretation of the word 'case decided' employed in section 115 of the Civil Procedure Code cannot be pressed into service for the purpose of interpretation of the proviso to subsection (1) of section 12 of the Ordinance.

7. This leads us to the next submission of Mr. J.H. Rahimtoola namely, that finality to an order is attached under sections 11 and 12 of the Ordinance only if it is in accordance with law and not an order which is in conflict with the pronouncements of the superior Courts or in which the discretion has not been exercised on the basis of well‑settled principles. He has, therefore, further submitted that factually the appellants have a very good defence inasmuch as the suit was time‑barred against them and, therefore, leave should have been granted unconditionally. In furtherance of his above submission he has referred to the following cases:‑

(1) Azmat Wali v. Hassan Ali‑Adawi and 2 others reported in 1983 CLC 546.

(2) Abdul Karim Jaffarani v. United Bank Ltd. and 2 others reported in 1984 S C M R 568.

In the above cases the Courts have dilated upon the question as to how the discretion of granting leave, conditionally or unconditionally is to be exercised. In our view, merely the fact that the learned Judge has not exercised discretion in the manner in which the law required, as alleged, by the appellants would not create a right of appeal under section 12 of the Ordinance particularly in presence of express prohibition. It is well‑settled principle of law that a right of appeal is a substantive right, which cannot be claimed unless it is expressly so provided under the relevant law. Even otherwise, in the instant case it cannot be said that the learned Judge has not applied his mind to the facts of the present case. It seems that he has addressed himself to the points in issue and has granted conditional leave to the appellants on furnishing security to the extent of 15 lacs rupees, whereas the suit amount as observed hereinabove is Rs.44,67,490.35.

8. We are, therefore, of the view that since the present appeal is against an interlocutory order, it is barred by proviso to subsection (1) of section 12 of the Ordinance and, therefore, it is dismissed in limine.

M.B.A./V‑2/K Appeal dismissed.

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