IN
THE HIGH COURT OF SINDH,
Special
High Court Appeal No.210 of 2011
Present: Aqeel Ahmad Abbasi J.
Sadiq Hussain Bhatti J.
----------------------------
Appellant: Nadeem
Athar and another through Mr. Muhammad Mushtaq Qadri, Advocate
Respondent: M/s. Dubai Islamic Bank
(Pakistan) Limited through Ms. Naheed A. Shahid, Advocate.
Date of
hearing: 20.11.2012
JUDGMENT
Sadiq Hussain Bhatti, J : Appellants are aggrieved by order dated 16.11.2011,
passed by the learned single Judge of this Court on CMA No.9780 of 2011, whereby
the same was dismissed.
2. Brief
facts of the case are that Appellants filed Banking Suit No.B-24/2010, against the
Respondents for declaration, recovery of articles, compensation/damages and
injunction with the following prayers:
a)
To declare that act of the Defendants was
illegal and unlawful and without due course of law.
b)
To declare that as per record the Plaintiff
No.2 had not committed any default for the alleged period of July, August and
September, 2008.
c)
Defendant bank be directed to return the
articles namely four gold jewelries sets plus four bangle and six laptop HP
brand to the plaintiff or the alternative an amount of Rs.17,00,000/- with
markup of 10% secure the interest of justice.
d)
Defendant bank be directed to return Rs.20,000.00 recovered by the plaintiff No.1 as Repo charges at
the time of handing over the possession of the vehicle.
e)
To grant permanent injunction to restrain
the defendant No.1 (Bank), their agents, representatives, attorneys, workers,
managers, officers, persons acting for them and on their behalf from
approaching the plaintiffs at their residence, at workplace and from harassing
and pressurizing and issuance of threats for dire consequences to plaintiffs
and their family, in any manner whatsoever and acting prejudicial to the
interests of the plaintiffs without adopting due course of law.
f)
A decree for damages and compensation in favour of the plaintiff against the defendants for Rs.60,000.000 (Rupees sixty million only) on account of mental
torture and agony and damages to the reputation and financial losses.
e) To grant any other
relief which this Honourable Court may deems fit and
proper looking into the circumstances of the case.
f) to award the
cost of the suit.
3. During
pendency of the suit, the appellants moved an application under Article 74 of
the Qanoon-e-Shahadat
Order, 1984, seeking permission to lead secondary evidence in the form of
photocopies of list of articles/seizure memo and intimation dated 25.02.2009 to
the police, which application was dismissed by the learned single Judge. The impugned
order reads as under:
“Through this application the plaintiff seeks permission from
the Court to produce secondary evidence of list of articles. According to the
plaintiff such list was given to the plaintiff by the defendant while taking
over the possession of the vehicle. Counsel submits that the vehicle was in
possession of the plaintiff and the defendant on alleged failure of the
plaintiff to pay lease rental, repossessed the vehicle in his presence and
while repossessing has issued acknowledging receipt of four golden sets lying
in the said vehicle. Counsel for the defendant has denied issuance of any such
receipt in respect of four jewellery sets. Even
otherwise it could not be believed that the plaintiff would handover
four jewellery sets to the defendant while handing
over the possession of the vehicle. The application is frivolous and,
therefore, the listed application is dismissed. However, it would be open to
the plaintiff to confront the alleged documents through the witness; but would
not be exhibited unless admitted by the witnesses.”
4. The above order has been challenged by
the appellants through present Special High Court Appeal.
5. Learned counsel for the Appellant
argued that the learned single Judge, while passing the impugned order, did not
appreciate the facts placed on record, which were duly supported by documentary
evidence pertaining to payment for the alleged period of default i.e. July,
August and September 2008 and also failed to consider the inventory/list of
articles dated 25.02.2009, prepared by the representatives of the respondent,
copy whereof was supplied to the appellant. Learned counsel for the appellant
further contended that learned single failed to appreciate the admitted fact that
original inventory of articles was in possession of the respondent and copy was
supplied to the appellant, as such, the appellant sought permission to lead
secondary evidence but the learned single judge lost sight of the admitted fact
and passed the impugned order. He further submitted that the learned single
also erred in holding that the application is frivolous and thus the same was
dismissed on the pretext that it could not be believed that the appellant was
carrying such articles in car at the time of repossession by the respondent,
which, per learned counsel, was purely matter of evidence for which issues have
already been settled. It has been contended that the impugned verdict given by
the learned single judge would damage the entire case of the appellant on
merits. Learned counsel further argued that the impugned order is liable to be
set aside as the findings recorded by the learned single judge whereby it has
been observed that “it would be open to the plaintiff to confront the alleged
documents through the witnesses, but would not be exhibited unless admitted by
the witnesses”, amounts to deciding the entire case of the appellant without recording
the complete evidence or going through the entire record. It has been further argued
by the counsel for the appellant that the impugned order passed by the learned
single judge is erroneous in law and facts, hence the
same is liable to be set-aside. In support of his contention, counsel for appellant
relied on the following reported cases:
(1)
Mst. HAMEEDA SHAMIM
and others versus DEPUTY COMMISSIONIER and 7 others [2009 MLD 556]
(2)
KARACHI WATER AND
SEWERAGE BOARD through Managing Director and another versus MUHAMMAD MOOSA [2001
CLC 221]
(3)
ABDUL WAHEED KHAN
and another versus ALEEMUDDIN KHAN [2001 CLC 333]
(4)
NATIONAL BANK OF
PAKISTAN versus KHAIRPUR TEXTILE MILLS LTD and others [2001 CLC 1187]
6. Conversely, at the very outset, the
learned counsel for the respondent has raised an objection as to
maintainability of instant appeal on the ground that no appeal lie against an
interlocutory order passed by the learned banking Court in terms of subsection
(6) of Section 22 of the Financial Institution (Recovery of Finances)
Ordinance, 2001. On merits also, learned counsel for the respondent has vehemently
controverted the submissions made by the appellant, and has supported the
impugned order passed by the learned single judge. It has been argued that the appellant
had acquired on lease Vehicle No.APF-589, Toyota Corolla from the respondent
under the Islamic mode of financing, to be repaid in monthly installments. The
appellant defaulted in payment of monthly rentals consecutively for three
months i.e. July, August and September, 2008 and despite repeated demands and
notices the appellant failed to pay the same, as such, the respondent exercised
its right and repossessed vehicle in question on 25.02.2009 from the appellant,
after complying with all the legal formalities. In this regard learned counsel
for respondent has further argued that neither such articles as alleged were
found in the vehicle at the time of repossession nor were mentioned in the list
of articles prepared by the respondent at the time of repossession of the
vehicle. It has been contended that the appellant had forged/tempered the list
of articles, as such the appeal may be dismissed. It has also been argued that
the appeal is also barred by time hence the same is not maintainable in account
also. In support of her contentions, counsel for respondent relied on the
following reported cases:
(1)
RAJ MUHAMMAD versus Mst. CHAN BIBI AND OTHERS [1984 SCMR 1068]
(2)
MUHAMMAD IBRAHIM versus RAJ MUHAMMAD AND ANOTHER [PLD 1984 SC (AJ&K) 51]
(3)
MIAN MUHAMMAD and 10 others versus ADDL: COMMISSINIOER
(REVENUE)/SETTLEMENT COMMISSIONER, RAWALPINDI and 2 others [1991 SCMR 520]
8. We have heard both the learned counsel and
have also perused the impugned order.
9. The appellants filed Suit No.B-24/2010
for declaration, permanent injunction, recovery of articles, damages and
compensation to the tune of Rs.60,000,000/- (Rupees Sixty Million) and during
proceedings also filed CMA No.9780/2011, seeking permission from the Court to produce secondary evidence of list
of articles and according to the appellants such list was given to them by the respondent
while taking over the possession of the vehicle, however, such application was
dismissed by the learned single judge vide impugned order dated 16.11.2011.
10. At
the very outset, we would like to see whether the appeal is maintainable
against an interlocutory order passed by the learned single judge or not. To
determine this aspect, it would be advantageous to examine the provisions of
subsection (6) of Section 22 of the Financial Institutions (Recovery of
Finance) Ordinance, 2001, which reads as under:-
“22.
Appeal. (1) Subject to subjection (2), any person
aggrieved by any judgment, decree, sentence, or final order passed by a Banking
Court may, within thirty days of such judgment, decree, sentence or final order
prefer an appeal to the High Court.
(6) 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 which does not dispose of the entire case before the
Banking Court other than an order passed under subject (1) of section 15 or
subjection (7) of section 19.”
11. From
perusal of the provisions of subsection (6) of Section 22 of the Financial
Institutions (Recovery of Finance) Ordinance, 2001 it appears that no appeal
lie against an interlocutory order passed by the Banking Court. Undoubtedly,
order passed by the learned single judge, for all intents and purposes, is an
interlocutory order as lis
is still pending before the learned single judge who has still to render its
final verdict. The legislature has made such order, passed by single judge, as
non-appealable by specifically making provisions in that respect by virtue of
subsection (6) of Section 22 of the Financial Institutions (Recovery of
Finance) Ordinance, 2001.
12. Under
the circumstances, when the legislature has specifically prohibited the filing
of an appeal against the interlocutory order no exception can be drawn from
such legislative intent, which otherwise would amount to defeating the clear intent
of the legislature. After having examined the provisions of subsection (6) of
Section 22 of the Financial Institutions (Recovery of Finance) Ordinance, 2001
we do not find any merit in this appeal and the same was accordingly dismissed
vide our short order dated 20.11.2012 and these are the reasons for such order.
The case law relied upon by the learned counsel for the appellant is not
relevant as the same is based on distinguishable facts.
13. Since
we have dismissed the appeal on the ground of maintainability in terms of
section 22(6) of the Ordinance 2001 we do not feel it necessary to dilate upon
the point of limitation in the instant case.
Accordingly, the instant High Court
Appeal is dismissed with no orders as to costs.
JUDGE
JUDGE
Karachi, dated
27-11-2012