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MUHAMMAD MUZAFFAR--Appellant
versus
ALLIED BANK OF PAKISTAN
and 7 others--Respondents
High Court Appeal No. 44 of 1987, decided on 16th April, 1987.
---S. 12--Law Reforms Ordinance (XII of 1972), S. 3--Interlocutory order--Appeal--Right of appeal, if any, held, was to be pressed into service in terms of the Ordinance XIX of 1979 and not from any general law on the subject--Appeal from an interlocutory order being barred under S. 12(1), proviso of the Banking Companies (Recovery of Loans) Ordinance, 1979, is not competent because of S. 3, Law Reforms Ordinance, 1972 for interlocutory order did not dispose of the entire case before Special Court.
The application was decided by the Single Judge while dealing with a suit filed under the provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979, the right of appeal, if any, is to be pressed into service in terms of the provisions of the Ordinance and not from any general law on the subject. Proviso to subsection (1) of section 12 of the Ordinance 1979 bars an appeal from an interlocutory order, which does not dispose of the entire case before the Special Court. In presence of the express bar, it cannot be held that an appeal is competent because of section 3 of Ordinance of 1972. By holding otherwise this Court would in fact render the above proviso to subsection (1) of section 12 of the Ordinance 1979 redundant. No appeal is competent against an interlocutory order which does not dispose of the entire case before the Special Court. Word "Special Court" will include the High Court for the purpose of section 12.
In the present case the Ordinance 1979 under which the suit was filed and the application in question was decided itself expressly provides in the proviso to subsection (1) to section 12 contrary to what is an ordinary incident of a final order passed by a Single Judge of the High Court in exercise of original civil Jurisdiction in the form of a right of appeal under section 3 of Ordinance of 1972.
Muhammad Ayub Butt v. Allied Bank Ltd. Peshawar and others P L D 1981 S C 359; Bank of America v. Alam s Brothers 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; Oriental Fashions Ltd. and 4 others v. National Bank of Pakistan PLD 1985 Kar. 178 and National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster General 1913 A C 546 ref.
S. Shahenshah Hussain for Appellant.
Irtiza Hussain for Respondents.
Date of hearing: 13th April, 1987.
AJMAL MIAN, J.-- This appeal is directed against an order dated 1-3-1987 passed by a learned Single Judge of this Court in Suit No. 98 of 1985 filed under the Banking Companies (Recovery of Loans) Ordinance, 1979, hereinafter referred to as the Ordinance, conditionally granting leave to the appellant on furnishing surety in the sum of rupees 1.5 million in place of the suit amount namely Rs.44,67,490.35. The office has raised an objection as to the maintainability of this appeal in view of proviso to subsection (1) of Section 12 of the Ordinance which provides that "provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the special Court. Two other guarantors/ shareholders of the Company had filed a High Court Appeal against the same order namely, H . C . A . No.41 of 1987 which we have dismissed in limine by a detailed order dated 14-4-1987. It is therefore not necessary to repeat the reasoning contained therein. However, it will suffice to observe that Mr. Shahenshah Hussain learned counsel for the appellant has taken an additional ground in the above appeal namely that the present High Court Appeal in terms of section 3 of the Law Reforms (Amendment) Ordinance, 1972, Ordinance No.XXXIV of 1972, hereinafter referred to as the Ordinance of 1972, is a High Court Appeal and not an appeal in terms of Section 12 of the Ordinance.
In furtherance of his submission he has referred to subsection (1) of Section 3 of the above Ordinance of 1972 which reads as follows:---
"3. Appeal to High Court in certain cases.-- (1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of its original civil jurisdiction;
Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court."
2. It is true that under the above section an appeal is competent from a final order made by a Single Judge of the High Court in exercise of its civil original jurisdiction, but the point in issue is, as to whether the present appeal can be said to be an appeal under section 3 (1) of Ordinance of 1972 or it is an appeal in fact under section 12 of the Ordinance. The caption of the appeal reads as follows:
"Appeal under section 3 of the Law Reforms Ordinance 1972 read with section 12 of the Banking Co. (Recovery of loans) Ordinance 1979 and section 15 of the Code of Civil Procedure (Amendment) Ordinance 1980."
A perusal of the above caption of the appeal indicates that the appellant has also referred to Section 12 of the Ordinance. In our view since the application was decided by the learned Single Judge while dealing with a suit filed under the provisions of the Ordinance the right of appeal, if any, is to be pressed into service in terms of the provisions of the Ordinance and not from any general law on the subject. Proviso A to subsection (1) of section 12 of the Ordinance bars an appeal from an interlocutory order which does not dispose of the entire case before the Special Court. In presence of the express bar we cannot hold that an appeal is competent because of Section 3 of Ordinance of 1972. If we were to agree with the above submission of Mr. Shehanshah Hussain, we would in fact rendering the above proviso to Subsection (1) of Section 12 of the Ordinance redundant. It has been held consistently that no appeal is competent against an interlocutory order which does not dispose of the entire case before the Special Court. In our view the word "Special Court" will include the High Court for the purpose of section 12. Reference may be made to the following cases:
1. Muhammad Ayub Butt v. Allied Bank Ltd. Peshawar and others reported in PLD 1981 Supreme Court 359.
2. Bank of America v. Alam a Bros and 6 others reported in 1984 CLC 3393.
3. Habib Bank Ltd and 2 others v. Karachi Properties Investment Co. Ltd. and 4 others reported in PLD 1984 Karachi 257.
4. Oriental Fashions Ltd. and 4 others v. National Bank of Pakistan reported in PLD 1985 Karachi 178.
Mr. Shehanshah Hussain has also referred to the case of National Telephone Company Limited (IN Liquidation) and another v. His Majesty's Postmaster General, reported in 1913 Appeal Cases, 546 in which one of the Lords in the House of Lords observed as follows:-----
"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches."
The above quoted observation indicates that the ordinary incidents of the procedure of an established Court are to attach if reference is made to the established court without more in the relevant provision of the statute for the purpose of adjudication. The use of the words "without more" is of great significance. They connote that in case if there is any thing contrary provided in the relevant provision of the statute, in that event the principle enunciated in the above quoted observation will not be applicable. In the present case the Ordinance under which the suit was filed and the application in question was decided itself expressly provides contrary in the aforeasid proviso to sub-section to Section 12 to what is an ordinary incident of final order passed by a Single Judge of the High Court in exercise of original civil jurisdiction in the form of a right of appeal under Section 3 of Ordinance of 1972.
3. For the reasons recorded in H.C.A. No.41/87 and also hereinabove, we dismiss this appeal in limine.
M.B.A./M-156/K Appeal dismissed.
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