PLJ 1997 Peshawar 120 (DB)
Present: MIAN SHAKIRULLAH JAN AND KHALIDA RACHID, JJ.
MUSLIM COMMERCIAL BANK LTD.-Appellant
M/s ADAMJEE PAPER & BOARD MILLS LTD. and two others-Respondents
F.A.O. No. 11 of 1995 announcement on 13.3.1997.
(i) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)--
—-S. 12-Civil Procedure Code, 1908 (V of 1908), Order 43, Rule 1 (ii), (Ordinance of 1908), S. 5-Whether appeal against order of Special Court would competent under any provision of law except section 12 of Ordinance-Question of-Opening sheet as well as caption of appeal indicate that appeal was intended by appellant to have been filed under order 43 Rule 1 (ii) C.P.C. read with Section 15 of Ordinance of 1990-Admitted before Judge of High Court but he was not acting as Judge Special Court establishment under Ordinance-Right of appeal has been given to aggrieved party against judgment and decree or order which shall be heard by Bench of not less than two Judges-By reading of Section No. 11 and 12 it is manifest that if any person is feeling aggrieved of order of Special Court, he can file appeal only under Section 12 and not under any other provision of law as section 3 precludes applicability of any other provision of law which has been provided for in Ordinance and section 12 with regard to filing grounds upon which appeal will have to be filed, with complete bar with regard to filing of appeal against interlocutory order-According to Section 2 (f)(ii) of Ordinance, High Court while trying suit under ordinance would be Special Court and act in exercise of its civil original jurisdiction-Then for purpose of section 12 of Ordinance it will be also treated as Special Court-Held: In view of bar contained in section 12(1) of Ordinance, appeal against interlocutory order was held to be barred and would not be competent under any other provision of law-Held further : Appeal apart from section 15 of Ordinance 10 of 1980 is not competent under Order 43, rule 1 C.P.C.-Appeal not maintainable and accordingly dismissed.
[P. 133,134 & 137] J, K, L, M & N
PLD 1987 Kar. 501, PLD 1993 SC 109, PLJ 1981 Lahore 583, PLJ 1981 SC 795 and PLD 1970 Lah. 641.
(ii) Civil Procedure Code, 1908 (V of 1908)--
—O. XLIII, Rule 3-Issuance of notice to respondents by appellant before presentation of appeal-Whether obligatory-Wehther non compliance of law in present case does not render provision of Rule 3, futile, inutile and nugatory-Question of-In instant case, learned Division Bench had issued pre-admission notice to advocate of respondents (Petitioner herein) and their Advocate on pre-admission notice-Thus, he could contest admission of appeal and seeks its dismissal in limine--No grievance, furthermore, was made by him to the effect that during hearing of appeal has not been supplied to him or that he was otherwise taken by surprise-Thus, in this case all objects for which Rule 3 was inserted in Order XLIII of C.P.C. were satisfied in substance-Held : Decision of Learned Judges of Division Bench to reject preliminary objection is upheld-Held further : Non-Compliance of Order XLIII, Rule 3 CPC by not giving notice for filing appeal to respondent would be of no consequence as objection is over ruled. [Pp. 131 & 132] F, G, H & I
PLD 1983 SC 693.
(iii) Limitation Act of 1908 (V of 1908)--
-S. 22, Civil Procedure Code (V of 1908) S. 107, 151, Order 41, Rule 20 & Order I Rule 10—Impleading of party during pendency of appeal-Whether S. 22 of Limitation Act, 1908 is applicable to appeals-Is there any analogous provision with respect of appeal-Question of-According to ' Section 22 of Limitation Act, if party is added to suit which has already been instituted, then as regards newly added partly suit shall be deemed to have been instituted when it was so made party-Here in this case, it is not suit but appeal to which respondent No. 3 was added at instance of appellant after period of limitation-Order 41, Rule 20 of Civil Procedure Code empowers appellate court to direct that man who ought to be party in appeal to be made respondent-Rule 10 of Order 1, C.P.C. when had with Section 107 C.P.C. is applicable also to appeal-Order 1, rule 10 of C.P.C. which empowers court to add person as party who ought to have been joined or whose presense before court is necessaiy in order to enable court to adjudicate effectually and completely upon all questions involved in suit-According to Section 107 C.P.C. appellate court shalj have same powers and to perform same duties as are conferred and imposed by C.P.C. on courts of original jurisdiction in respect of suits-By reading these provisions together, then appellate court can add party to appear, if necessary-Court even otherwise, has got sufficient powers under S. 151 C.P.C. to add any party to appeal-Held : Respondent No. 3, has been impleaded when period of limitation has rule out for filing appeal but that would be of no consequence in view of its subsequent impleadment in appeal-Held further : Provisions of S. 22 of Limitation Act are not applicable to appeals. [Pp. 128, 129, 130 & 131] A, B, C, D & E
PLD 1989 SC 532, AIR 1930 Lah. 295 and 1988 MLD 113.
M/s. Abdul Sattar Finger & Ghulam Nabi, Advocates for Muslim Commercial Bank alongwith Sher Bahadur, Controller M.C.B.
M/s Fazal Ghani Maalik, M. Sardar Khan, Mr. Samiullah Jan and Bashirullah Khan, Advocates for Respondent. Dates of hearing: 16 and 17-9-1996 and 13-3-1997.
Mian Shakirullah Jan, J.--This appeal is directed against the judgment and order of the Special Court established under the Banking Companies (Recoveiy of Loans) Ordinance, 1979 (hereinafter referred to as the Ordinance) whereby, during the execution proceedings, .the application submitted by the appellant under Order XXI Rule 58 C.P.C. was turned down.
2. M/s. Adamjee Paper and Board Mills Ltd., respondent No. 1 (hereinafter referred to as respondent No. 1) a company, obtained loan and availed banking facilities from the Pakistan Industrial Credit and Investment Corporation Ltd. (respondent No. 2) and on account of failure of respondent No. 1 to pay the amount alongwith interest and other charges to respondent No. 2, the latter filed a suit for the recoveiy of an amount of Rs. 2,38,87,876/-before the Special Court Banking Companies and in which respect a preliminary decree was passed on 13.10.1993, and final decree was, stated to have been, passeii on 30.3.1994. The respondent No. 2 in pursuance of the decree obtained, initiated execution proceedings during which proceedings, the factory/property of respondent No. 1 was attached. The appellant, The Muslim Commercial Bank Ltd., during the execution proceedings, submitted an application under Order XXI Rule 58 C.PJ., making a prayer for the vacation of the order of attachment/sale of stocks, goods, assets which are lying at the factory premises of the judgmert-debtor, respondent No. 1. In the application, the appellant has stated thft it is also a Banking Company and the judgment-debtor has requested theappellant for credit and banking facilities against hypothecation of stock md fixed assets in the sum of Rs. 6,05,00,000/- and agreed to create a sg.ond charge and which facility was availed by respondent No. 1. It has alsobeen stated therein that in view of the continued failure and default on tie part of the appellant in making payment of the outstanding dues, thf appellant sewed respondent No. 1 with a notice dated 18.2.1993 callingupon it (respondent No. 1) to make payment of the amount then outstanding, due and payable and efter which the winding up proceedings were ?so initiated before the High Court of Sindh at Karachi vide J. Misc. No. 5>/94. The appellant stated tlut it had got the knowledge of the execution 'roceedings on 15.4.1995 when a public notice was published in the Bail' Mashriq, Peshawar to the effect that all the assets of respondent No. 1 vould be sold in the execution of a decree obtained by the decree-holder (jjspondent No. 2) and that the sailed bids for the same were invited. Thus the application in question was submitted before the
Executing Court ftereinafter called as the Court) :>n 24.4.1995 vide C.M. No. 2/95. The or-er sheet of-the Court dated 24.4.1995 reveals that an auction was held in-he Court whereby after giving fulldetails of the auction proceedings, it was^lso observed :--
"The leaned counsel for the decree-holcer and the Deputy Managing Director PICIC after lonsented to accept the offer of Mr. Moazzam Ali Klan of Abid
International.................. They submitted writtei consent for the Acceptance of the improved bid of M/s Adil international an4 also specified the schedule of payment whici is accepted t,the bidder."v%
This bid was fr Rs. 22,00,00,000/- out of which rupees sevei crore was promised to te deposited on the acceptance of the bid and th: remaining amount wou3 be paid in annual installments of rupees thre crore per annum for t»e first three years and the balance of rupees six crae would be paid in the^th year. This order sheet, whereby the auction proeedings, as stated abfve, were ordered, also contains at the end with regard to the submission of application ia question by the appellant and after calling for reply fo' the said application and also the application for staying of the execut&n proceedings, 27.4.1995 was fixed for arguments on which late the impujned order was passed.
3. The learned
Special Court after examining the merits of th> case am relevant provisions of law; arrived at the conclusion that the application tad been designed to unnecessarily delay the execution proceedings. The ippellant was in perfect knowledge of the fact that the Mills and the asets
thereof were already mortgaged/hypothecated with the decree-holder and a reference was made to para-5 of the affidavit annexed with the application whereby the appellant had expressed its consent to create a second charge
over the assets of the company/respondent No. 1 against the hypothecation of stock etc. for providing of facility of Rs. 6,05,00,000/-. The other factor which weighed with the learned Special Court was the conduct of the applicant by holding that the application had been designed to prolong the execution matter. It has been further observed in the impugned order that the record also shows that the property of the judgment-debtor both moveable and immovable was attached on 30.3.1994 and the advertisements were ordered to be published for the sale of the property in the newspaper on 25.9.1994 after which another publication was also issued in various leading newspapers of the country with a similar exercise for the third time and the application was submitted on 24.4.1995, that is, after a period of more than a year of the order of attachment The application was held by the Court to be time barred, as the same was neither filed within a reasonable time or within one year of the date of attachment in execution and no explanation was offered for this unnecessary delay in submission of the application.
4.The winding up proceedings, as stated earlier, had already been initiated by the appellant before the High Court of Sindh, Karachi and during which proceedings the Hon'ble Judge has ordered that the respondent-company was to be wound up vide his order dated 14.9.1995. As the instant appeal was pending in this court so the appellant approached the Sind High Court by submitting an application under section 316 of the Companies Ordinance, 1984 seeking permission to proceed with the instant appeal which application was accepted and the permission was granted, vide order dated 17.10.1995.
5.The learned counsel for the respondent No. 3, i.e. Adil International has raised two objections with regard to the lUJuntainability of appeal;
(i) Limitation, i.e., that the appeal is time barred qua respondent No. 3; and
(ii) Incompetency of the appeal on twofold ground :
(a) Non-service of notice under Order XLIII Rule 3 C.P.C.
(b) In view of the provisions* of Section 12 of the Ordinance.
6. While stating the first objection regarding the limitation the learned counsel has contended that respondent No. 3 is a necessaiy party being an auction purchaser who has purchased the industiy through auction and a p>art of payment in this respect has also been made and it has been impleaded after the expiiy of the period of limitation.
7. The first part of the second objection is regarding the incompetency of appeal, it has been submitted that though an interlocutory order has been challenged through an appeal under the provisions of C.P.C. as the caption of the appeal indicates by mentioning Order XLIII Rule I (ii) read with Section 15 of the Ordinance, 1980 (Code of Civil Procedure Amendment Ordinance, 1980) and no notice as contemplated under Order XLIII Rule 3 C.P.C. has been given to the respondent and it has rendered the appeal as incompetent.
8. The other part of the second objection relates to the maintainability of appeal, as stated above, in view of the provisions of Section 12 of the Ordinance. The learned counsel for the respondent has submitted that the appeal is not maintainable as the order of the Special Court is under the Ordinance which has been challenged and the only provisions of the law for filing of the appeal is provided therein in the Ordinance which is Section 12 and if the appeal is not, and cannot be filed unde.r the provisions ofSection 12 of the Ordinance then an appeal under any oth^r provision of law is not competent.
9. The learned counsel for the appellant was asked to meet the preliminary objections of the respondent but instead of giving .reply firstly, specifically, to the objections, he dilated upon the merits of the case by stating that the same can betterly be answered after elaborating tbe facts of the case and raising his contentions on that aspect of the case. His this lengthy argument mainly on the facts of the case obliged this Court to record the rival contentions of both the parties before giving finding on the preliminary objections.
10. The learned counsel for the appellant, in addition to his othfer contentions to the effect:
(i) that the amount of Rs. 22,00,00,000/- for which the company has been auctioned is a lesser one and it could have been auctioned for Rs. 50,00,00,000/- if proper care and caution had been taken, and ;
(ii) that no detail of the company assets had been given in tha auction notice and in the absence of which no proper offer could have been made, has laid much emphasis on the point that no investigation in the claim was held by the Court as envisaged in Order XXI Rule 58 C.P.C. and without carrying out any investigation the application was summarily dismissed which, according to him, required an investigation and thus an illegality was committed by the Court. Without regard to his contention (i) that the factory and its assets could fetch much more higher price, than the one for which it was auctioned, amounting to Rs. 50,00,00,000/-, the learned counsel for the auction purchaser expressed their readiness to transfer the company and its assets purchased by them through auction for the said amount to the appellant but their this offer was not responded positively on behalf of the appellant. In reply to the second contention it has been submitted on behalf of the respondent that during the execution proceedings it was not for one time that the publication was made for the auction of the company but it was several times and mainly on the ground that the offer used to be a lesser one and not acceptable to the decree-holder. The contention with regard to the details of the assets in tae auction notice, it has been submitted that, it is also not maintainable as if a,look is made at the notice then in addition to the brief resume given therein it had also been mentioned that the full detail could be ascertained from the Additional Kegistrar of this Court It has been further contended t^at these are objections pertaining to post attachment proceedings and ncc pre-attachment proceeding whereby the requirement of law is that it would be shown that the property was not liable to attachment on the basis offanafide claim and invoking of provisions of Order 21 rule 58 CPC were not £>r curing the defects in post auction proceedings.
11. With regard to the main point of the appellant that is, the non-holding of the investigation by the Court, it has been argued by respondents counsel ti'at it would be proper that a reference be made to the relevant provisions of law. According to Order 21 rule 58 CPC, the jurisdiction of the Court is invoked by a person who is having a claim or interest in the attached property and his assertion is that the property is not liable to such attachment by reason of his claim or interest. According to Order 21 Rule 60 C.P.C. in case the claimant succeeds then the property so attached is released wholly or partly on the ground that it is not liable to attachment on the basis of the title, right or interest of the claimant. Normally such like situations happen when a person has laid a claitti over the attached property by contending that it is his property and not of the judgment-debtor or that he is having a claim over the same on the basis of certain transactions or undertaking prior to the establishment of the claim of the decree-holder. It has been further argued that here in this case it is not the case of the appellant that the property is not belonging to the judgment-debtor or that the decree-holder is not having a claim over the said property but rather appellant's plea is that because of the creation of the second charge over the movable assets of the company the attachment of the whole of the property is not proper. The question is that the person who is having a claim on the basis of a second charge without any denial to the first charge of the decree-holder or that the property is not belonging to the judgment-debtor asserts that the property is not liable to attachment on the ground of a second charge. It has been submitted that the answer to the question would be in the negative because when the claim of the decree-holder is admitted .and the title of the judgment-debtor is also admitted then the natural consequence of such admitted facts, hi ease of a decree, would be the attachment of the property and no one would be allowed to have an objection to the attachment of the property. The conclusion derived by the learned counsel for respondent is, if one looks at the matter from this angle then it can definitely be said, that the property is liable to attachment and if anybody is having any claim at the most he could ask the court that any amqunt in excess of the decree should not be given or disbursed to the judgment-debtor but he kept or be given to him, or the decretal amount be distributed proportionately subject to agreement, if any, in case he proves his right to the said amount etc.
12. The learned court dismissed the petition mainly on the ground that it had been designedly or unnecessarily delayed and that the appellant had not filed the application within reasonable time or within a period of one year of attachment. It has been contended on behalf of respondents that it was not only once that the advertisements were made in the newspaper but, as stated earlier, the advertisements to this effect were made several times and not in one newspaper but in several newspapers having a wide circulation like "Dawn Karachi", "Muslim Islamabad", Mashriq Peshawar", "Nawa-e-Waqt" and "Jang Rawalpindi". It is the case of the appellant that it got knowledge through a publication published in the Mashriq Newspaper dated 15-4-1994 and still waited till a date when the auction was made on 24.4.1995 on which date the application was submitted in the court and the sequence of the order reveals that it was submitted subsequent to the auction and sale proceedings in the Court. Lastly it has been contended that when it is the case of the appellant that it got the knowledge through a publication in the newspaper then what the reasons were that through theprevious publication in the various newspapers for various times spreading over months the same were not noticed by it.
13. We refrain to give our findings on the above-mentioned contentions of both the parties lest it may prejudice the parties in one way or the other as the appeal has been decided on the ground of preliminary objection i.e. maintainability of appeal in view of provisions of Section 12 of the Ordinance on the reasons to be discussed hereinafter in para 24 and onward.
14. The objection with regard to the limitation is taken first The impugned order was passed on 27-4-1995 and the appeal was filed on 3-5- 1995. The case was fixed for preliminary hearing at 8-5-1995 on which date a pre-admission notice was given. The appeal was again fixed for hearing on 30-5-1995 on which date it was admitted to full hearing. The appellant submitted an application for impleadment of Aadil International in the appeal as respondent on 30-5-1995 and an order to that effect was passed bythis Court on 15-6-1995 for the impleadment of Aadil International, the auction purchaser. An application beai-ing C.M. No. 99/95 was alsosubmitted on 14-6-1995 for the maintenance of status quo and restraining the respondents and on which application the order was passed on the said date, i.e., 15-6-1995 to the following effect:--
"Notice. Meanwhile the respondents are directed that no sale certificate shall be issued in favour of Aadil International."
M/s Adamjee Paper and Board Mills was also impleaded in the appeal vide order dated 23-10-1995 of this Court.
15.The period prescribed for filing an appeal under section 12 of the Ordinance is 30 days while the period for filing an appeal under the Code of Civil Procedure is three months under Article 156 of the Limitation Act. According to the learned counsel for the respondent as the order of. The Special Court Banking is under challenge, the appeal would be considered under section 12 if otherwise competent, and has submitted that~the application for impleadment of Aadil International was filed on 30-5-1995 and the order was passed on 15-6-1995 for its impleadment and both are beyond the period of limitation of 30 days. Now it will be seen that a partywhich ought to have been made as such was not made inadvertently or by omission in due time, i.e., the period prescribed for filing of the appeal, then the delay is condonable and if it is, then under what provision of law. In this respect reference may be made to section 3 of the Ordinance and for the sake of convenience the same is reproduced as under :--
S. 3. Ordinance not to derogate from other laws The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.This section has clearly made applicable all the relevant laws of a particular aspect of subject of the case provided that has not been expressly excluded.
16. The learned counsel for the respondents, supporting their this contention, referred to Sections 3, 22 and 29 of the Limitation Act. According to Section 3, when an appeal or suit has been instituted or preferred after the period of limitation, shall be dismissed. According to Section 29, if any special or local law prescribed for any suit or appeal, a period of limitation different from the period prescribed by the Limitation Act, the provisions of section 3 shall apply. Section 22 alongwith other sections has been made applicable to cases under special law. According to Section 22, if a party is added to the suit which has already been instituted, then as regards the newly added party the suit shall be deemed to have been instituted when it was so made a party. Here in this case, it is not the suit but the appeal towhich respondent No. 3 was added at the instance of the appellant after the A period of limitation and Section 22 is not applicable to the appeals. In this respect & reference may be made to a judgment of a Division Bench of the Lahore High Court reported as Syed Rahat Hussain Zaidi vs. Settlement Commissioner (1988 MLD 113) and while dealing with the question that Section 22 is applicable to the appeals or not it was observed as follows :--"Now from the language used herein the counting of time limit is there but it is applicable only to the suits and there is no parallel provision as to appeals within the Limitation Act or to say that a plaintiff and a defendant shall include an appellant and respondent respectively, so the appellate Court has the discretion to substitute or add an appellant or respondent after the period of limitation prescribed for an appeal."Reliance was also placed in above referred case on a judgment of the Court of Wards on behalf of the Raja of Kanti vs. Gaya Parsad and others • (ILR Allahabad Series Vol. II (1879) wherein it was held :--
"The first question arising in this appeal is whether or not the appeal so far as it affects Ram Manorath is barred by limitation.-By some carelessness he was not at first made arespondent and the period prescribed for appeal had expired before he has brought on the record as a respondent. By 22nd section of the Limitation Act it is provided that when after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall as regards him will be taken to have been instituted when he was so made a party.There is no analogous provision with respect to appeals, and therefore, it is competent-to the Court to exercise its discretion in allowing a party to be added to the record afterthe period prescribed for the admission of an appeal has elapsed....................... "
17. Furthermore Order 41 rule 20 of the Civil Procedure Code empowers an appellate Court to direct that a person who is ought to be a party in appeal to be made arespondent. In ,a judgment reported in Said Muhammad and others vs. M. Sardar and others (PLD 1989 SC 532), while dealing with the question with regard to the impleadment of a person during the pendency of appeal under Order 41 rule 20 and while interpreting the words "interested party" which finds its mention in the above mentioned rule, it was held that if a person is not a party to the appeal, then holding him that it is not an interested party is not inviolable rule and while making reference to certain judgments of the Privy Council it was observed :--•
"It did not foreclose the exercise of discretion to be exercised in the circumstances of the case and that this carried with it the power to condone the delay."
While making reference to another judgment, it was observed :--
"the language of Rule 20 of Order JCLI does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by section 151 C.P.C."
18. While again referring to another judgment of the Indian jurisdiction Jalal Din vs. Karim Bakhsh (AIR 1930 Lahore 295), it was heldas under :--"If by omission the name of a party is left out due to oversight, the proper course for the appellate Court is to exercise its powers under Order XLI rule 20 and implead the party so omitted in appeal."In the case (PLD 1989 Supreme Court 532) supra the non-impleadment of a person as party in the case was held as an inadvertent error and while remanding the case back to the appellate Court it was directed to implead him as a respondent in the appeal and to dispose it of inaccordance with law.
19. Order I rule 10 of the C.P.C. which empowers a Court to add any person as a party who ought to have been joined or whose presence before the Court is necessary in order to enable'the Court to adjudicate effectually and completely upon all the questions involved in the suit. According to section 107 C.P.C. the appellate Court shall have the same powers and to perform the same duties as are conferred and imposed by the C.P.C. on courts of original jurisdiction in respect of suits. By reading these provisions together, then the appellate Court can add a party to appeal if necessaiy. In the case referred to above as 1988 MLD 113, it was held that this rule when read with section 107 CPC is applicable also to an appeal. It was observed :--
"In the present case it is true that the right of the co-appellants to appeal therefrom the judgment, has become time barred by 65 days when they were added as co-appellants to this appeal but this will not have its impact upon their position when so added so as to say that the appeal regarding them will be treated to have been filed when they are added as parties as in the suits."
In this context a reference was made to Section 22 of the Limitation Act that-the provisions of which are not applicable to appeals.
20. The court even otherwise, has got sufficient powers under section 151 CPC to add any party to the appeal and in this respect a reference can be made to a judgment reported as Shanti Lai and others vs Firm Hira Lai Sheo Narain (A.I.R. 1941 Lahore 402) wherein it has beenheld:--
"Apart from 0.41, R. 20 the Court has ample power under S. 151, Civil P.C. to add a party to the appeal even after the expiiy of the period of limitation prescribed for appeals, if in the circumstances of the particular case before it, it thinks fit to do so."
21. The result of the above discussion would be that though respondent No. 3, Aadil International has been impleaded when the period of limitation has run out for filing the appeal but that would be of no consequence in view of its subsequent impleadment in the appeal.
22. The non-compliance of Order XLIII rule 3 of the CPC by not giving a notice for filing of appeal to the respondent, in the instant case, would be of no consequence. Both the parties have relied upon the judgment reported as Mrs. Dina Maneji Chinoy vs. Muhammad Matin (PLD 1983 S.C. 693) wherein it was held that notice under Order XLVIII rule 3 CPC is a mandatoiy one and no appeal can be entertained without issuance of the requisite notice and this part of the judgment as relied upon by respondent No. 3. In this judgment it was also held that when all the objects for which the above mentioned provision inserted were satisfied insubstance then it should not stand in the way of the appellant to make his appeal liable to dismissal by observing that a party could not be allowed to be defeated forfailure to comply with the form where the substance had, in fact, been complied with. A pre-admission notice has been given in the appeal and now it has been admitted that an opportunity has been afforded to the respondents to present their case and it is not their case that any document to which reference is being made during the hearing of the appeal has not been supplied to him or that he is otherwise taken by surprise. The relevant' portion of the judgment gives a complete answer to the contention/objections of both the parties which is reproduced herein below :-
"18. The above portion highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limine stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not to possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be last and resultantly the provisions of sub-rule (2) of Rule 3 would be rendered futile, inutile and nugatoiy. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is ' • obligatory and no appeal can be entertained without ' issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that theprovisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his advocate to submit, alongwith the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his advocate by delivering him a copy of the memorandum and grounds of appeal alongwith the copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his advocate, as the casemay be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained.
19. In the instant case, we observe that the learned Division Bench had issued a pre-admission notice to advocate of the respondents (the petitioner herein) and their advocate Mr. Akhtar Mahmood was present on pre-admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in Hmine. No rievance, furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal has not been supplied to him or that he was otherwise taken by surprise. Thus, in this case all the objects for which rule 3 was inserted in Order XLIII of the CPC were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pcerzada, should be utilized as "stepping stones" rather than we might add, as stumbling block; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtaiz Ahmad vs. Ghulam AH and others (1) and Manager, J & K State property in Pakistan vs Khudayar (2).
20. On this view of the matter, we would uphold the decision of the learned Judges of the Division Bench to reject the preliminary objection and in finding that the appeal preferred before them by the respondent herein was liable to be disposed of on merits."This objection of the respondents, in view of discussion above, is also over-ruled.
23. If the appeal is found maintainable in view of the provisions of Section 12 of the Ordinance then these two objections would not stand in way of the appellant and which (maintainability u/s 12) will be seen hereinafter.
24. The last but'no least objection of the respondent is in respect o!' j the maintainability of the appeal on the ground of the provision of section li! J of the Ordinance. The opening sheet as well as the caption of the appeal indicate that the appeal was intended by the appellant to have been fileJ under Order 43 rule (1) (ii) CPC read with section 15 of Ordinance X of 1980. The admitted position is that though the proceedings were pending before a Judge of the High Court but he was not acting as a Judge of the High Court but he was acting as a Judge of the Special Court established under the Ordinance. Right of appeal has been given to an aggrieved party against a judgment and decree or order of the Special Court to be filed in the High Court which shall be heard by a Bench of not less than two Judges. This section is having a proviso whereby filing of an appeal from an interlocutory order which does not dispose of the entire case has been debarred. Section 11 gives finality to the orders of the Special Court by dis allowing any challenge to it before any Court or other authority except in accordance with the provision of appeal under section 12. By reading sections3, 11 and 12 it is manifest that if any person is feeling aggrieved of an order of a Special Court he can file an appeal only under section 12 and not under any other provision of law as Section 3 precludes the applicability of any other provision of law which has been provided for in the Ordinance andsection 12 with regard to the filing of appeal provides the relevant forum and the grounds upon which an appeal will have to be filed, with a complete bar with regard to filing of an appeal against an interlocutory order. Section 11 also excludes the challenge to an order of the Special Court before any forum or authority except provided in Section 12 of the Ordinance. Moreover, the Ordinance is a special statute which would exclude the application of any other law which comes in conflict with its (Ordinance) provisions and as it has been seen above, section 3 of the Ordinance gave an over riding effect to the provisions of the Ordinance,
25. The question is that whether any such appeal against the order of a Special Court would be competent under any other provision of law except section 12 of the Ordinance, as has been filed in the instant case under Order 43 rule 1 (ii) C.P.C. Section 12 on one hand gives a right to a person against whom a decree or order has been passed to file an appeal in the High Court yet at the same time it makes certain provision debarring a person against whom interlocutory order, which does not dispose of the entire case, has been passed to file an appeal. For this purpose a reference will have to be made to the Constitution of the Special Court and also the High Court while acting as the appellate Court under the Ordinance. According to section 2(f) (ii) of the Ordinance, the High Court while tiying a suit under the Ordinance would be a Special Court and will act in the exercise of its civil original jurisdiction. Then for the purpose of Section 12 of the Ordinance it will be also treated as a Special Court.
26. In a case reported as PLD 1987 Karachi 501 while commenting upon the provision of Section 12 of the Ordinance and the filing of an appeal
"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 Je<ss-/?ed SJ^gJe Jxdg& tvhJJe dexJJxg- HvtJ? g jutt ftied 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 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
27. The appellant by filing appeal against the order of
Special Court under other provisions of Section 15 of Ordinance X of 1980 and Order 41 rule l(ii) itself treating the order as interlocutory otherwise would have filed appeal under section 12 of the Ordinance. However, this by itself would not non-suit the appellant or debar the Court to treat the appeal under relevant provision of law instead of having been mentioned in the memorandum of appeal if otherwise competent. The case pending before the court is in the nature of execution proceedings and which have not been finalized as according to the parties sale has taken place in favour of respondent No. 3 and according to whom the possession has been delivered but admittedly the sale certificate as required under Order 21 rule 94 has not been issued.Moreover, it is the attachment/auction which have been challenged after which certain steps are required to be taken i.e., the confirmation of saleunder Order 21 rule 92 and issuance of sale certificate as stated above. Thus the order has not disposed of the entire case, i.e. the entire execution proceedings but still pending and order of stay dated 15-6-1995 has been obtained from the Court during the pendency of the appeal that the sale certificate not be issued, (order reproduced in para 14 supra).
28. In view of the bar contained in Section 12(1) of the Ordinance, the appeal against an interlocutory order was held to be barred and would not be competent under any other provision of law as stated earlier. Though the appeal is a substantive right but the forum to which the appeal lies as a matter of procedural law and which is provided by the enactment itself and which in the instant case has been provided under section 12 of the Ordinance.
29. Such points have been dealt with by the august Supreme Court in a number of cases which have been decided through a single judgment as reported inPakistan Fisheries Ltd., Karachi and others us. United Bank Limited (PLD 1993 Supreme Court 109). In all those cases the appellants/customers applied for grant of appeal to defend the suit and a learned Single Judge of the High Court, acting as Special Court, by means of different orders granted conditional leave of the suit subject to furnishing of the security in each case. The appellants' claim was that they were entitled to unconditional leave to defend the suits and thus aggrieved of imposition of the condition as to the furnishing of security, they challenged the leave granting orders through appeal under section 15 of Ordinance 10 of 1980. While interpreting the word 'case' used in the proviso of Section 12(1) of the Ordinance in the context as under :--
"interlocutory order which does not dispose of the entire case before the
Special Court."and after discussing the contention raised by the learned counsel for the appellant and also by making a reference of the word 'case' used in other section of the Ordinance with a particular reference to Section 13, it was concluded as follows :-"We have no doubt that the word 'case' appearing in this clause signifies 'suit' and not some controvertial matter arising out of or forming part of the suit."
It was further observed :—
"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 other question before the august Supreme Court was also the very nature of the jurisdiction and status of the High Court while acting as a Special Court and the competency of the appeal under section 15 of the Ordinance 10 of 1980 in this respect findings of the Hon'ble Supreme Court were as under :--
"So far as Section 12 is concerned, there is nothing therein to construe the High Court as different from the Special Court defined in Section 2(f) of the Ordinance."
It was further observed :--
"It seems to us that by expression "original civil jurisdiction" as used in the Ordinance is meant the trial of the suit on the original side of the High Court. The term has not been used in the technical sense as understood with reference to the Letters Patent of some High Court Sub-Continent, but has been employed in centra-distinction to the appellate and revisional jurisdiction exercised by the High Court. The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears fictional character of a Special Court as defined in the Ordinance."and at the end it was concluded to the following effect :--
"Combined effect of these provisions is that the judgment and order passed by a Special Court cannot be assailed before any forum except in accordance with the provisions ofSection 12."In the said judgment the object of the Ordinance was also held to be to secure expeditious disposal of the cases by the Special Court. The challenge to the interlocutory order was disapproved and ultimately the appeals filed before the Supreme Court were dismissed, upholding the judgment and order of the High Court whereby the appeals filed by the appellants were held as incompetent.
30. Another aspect of the case is also considered that if the appeal is not competent then whether the same can be treated as revision. This point came up for consideration in cases reported as Azhar liussain vs. Chartered Bank Ltd.
Faisalabad and 17 others (PLJ 19S1 Lahore 5S3) Muhammad Ayub Butt vs. Allied Bank Ltd. and others (PLJ 1981 Supreme Court 795). The question involved in the cases was whether a revision petition preferred against an interlocutory order of a Special Court wascompetent or not wherein it was held after making a reference to Section 3 of the C.P.C. that the Special Court under the Ordinance was not a subordinate to the High Court and the revision petition was held to be incompetent. Section 3 of the C.P.C. is reproduced with advantage :-- Peshawar
"3. Subordination of Courts :--
For the purposes of this Code, the District Court is subordinate to the High Court and every civil Court of a grade inferior to that of a District Court and eveiy Court of Small Causes is subordinate to the High Court and District Court."The relevant portion of the judgment of the Supreme Court is reproduced below :--
"No amendment has been made in section 3 of the Code of Civil Procedure so as to declare a Special Court also as a Court Subordinate to the High Court nor is there any ' provision in the Ordinance to the effect that a Special Court shall be deemed to be a Court subordinate to the High Court for the purposes of Section 115 of the Code of CivilProcedure."Reliance was placed on Wqjahat Mi Hasni vs. Mst. Ghazala (PLD 1970 Lahore 641).
According to Section 4 of the Code of Civil Procedure, an over-riding effect has also been given to any provision of special statute over the provision of the Civil Procedure Code and it reads :--
"4. Savings.--(l) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."
31.In this respect some observations with regard to Section 4 of the Civil Procedure Code and sections 11 and 12 of the Ordinance have also been recorded in the above-referred cases of Supreme Court which are to the following effect :--
"Undoubtedly, a Special Court is a Court of special jurisdiction and sections 11 and 12 of the Ordinance preclude the High Court from exercising its rcvisional jurisdictionqua the orders of the Special Court. It would, therefore, follow that in view of the provisions of sections 11 and 12 of the said Ordinance read with section 4 of the Code of Civil Procedure the orders of the Special Court cannot be assailed before the High Court in revision by resorting of the provisions of section 115, C.P.C., i.e., revision is also notmaintainable."
32. In view of the matter the appeal, apart from section 15 of Ordinance X of 1980, is also not competent under Order 43, rule l(ii), C.P.C. The conclusion would be that the appeal has been filed against an interlocutory order of the Special Court would not be competent under section 12 of the Ordinance and no appeal can be filed under any other provisions of law.
33. Though some references have been made in para supra of this judgment to certain provisions of the Civil Procedure Code for example e.g., Order 21 rules 60 and 90 but as under section 6 of the Ordinance the power of execution has been given to the Special Court and the application of those provisions have not been ousted by Section 3 of the Ordinance like Section 12.
34. -Consequently, we hold that the appeal being incompetent, not maintainable is, therefore, dismissed with no order as to costs.