PLJ 2009 Lahore
712
Present: Ali Akbar Qureshi, J.
SHAUKAT HAYAT--Petitioner
versus
SHAKIL AHMAD MUGHAL--Respondent
C.R. No. 1712 of 2007, heard on 31.10.2008.
Banking Court Act, 1997--
----S. 27--Civil Procedure Code, (V of 1908)--Ss. 115
& 51, O.VII, R. 11--Rejection of plaint--Jurisidctional
of civil Court to entertain the matter relating to affairs of Banking
Company--Barred by law--Questioning the auction made by Banking Court in
execution of decree--Civil Court has no jurisdiction to entertain and decide
the matter--Petitioner purchased land in-question in open auction being highest
bidder--Validity--Civil Court had no jurisdiction to entertain a civil suit
wherein the judgment only remedy available to respondent to challenge validity
of sale made in favour of the petitioner in pursuance
of auction conducted by Banking Court by filing and objection petition before
Banking Court, who had jurisdiction to validate or invalidate the auction, if
not conducted in accordance with law--Petition was allowed. [Pp. 714 & 715] A & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXI, R. 89--Civil Court cannot sit in a judgment if
some auction has been made regarding the property of a person who has
interested in the same. [P. 714] B
PLD 1993 SC 109 & 2002 SCMR 338, rel.
Rana Nasrullah
Khan, Advocate for Petitioner.
Respondent in person.
Date of hearing: 31.10.2008.
Judgment
This civil revision is directed against the order dated
2.7.2007 passed by the learned Addl. District Judge, Sialkot
whereby the order of the learned trial Court to reject the plaint under Order
VII, Rule 11 CPC was set aside and the case was remanded for afresh decision.
2. The respondent
instituted a suit questioning the auction made by the learned Banking Court No.
4, Lahore in
execution of a decree passed in the suit titled as Grindlays
Bank Limited v. Samanda and Sons (Suit No. 41/1997).
The said property was purchased by the petitioner on 23.6.2000 and in
consequence of the said sale, a sale certificate was
issued to the petitioner on 18.7.2000. The petitioner mainly challenged the
sale on the ground that the property was part of joint Khata
and undivided, therefore, the sale of the land giving
specific area and number could not be auctioned. The petitioner field an
application under Order VII, Rule 11 read with Section 151 CPC whereas the
other defendants of the suit filed the consenting written statement in the
application under Order VII, Rule 11 CPC. The petitioner submitted that as the
sale was made in pursuance of an auction by the learned Banking Court in execution of a decree
under the Banking Courts Act, 1997, therefore, the Civil Court has got no jurisdiction to
entertain and decide the matter. It was also submitted in the said application
that the sale made by the Banking
Court can only be questioned by the respondent by
filing an objection petition under the relevant law. The learned trial Court
after receiving the reply of the application and hearing the matters of the
parties, finally accepted the application under Order VII, Rule 11 CPC and
rejected the plaint being barred by law. The respondent being aggrieved of the
said order, filed an appeal. The learned appellate
Court heard the arguments of the parties and finally accepted the appeal on the
ground that the Civil Court
has the jurisdiction to entertain and decide the matter and finally set aside
the judgment and decree and remanded the case afresh to the learned trial
Court.
3. The learned
counsel for the petitioner contended that in view of the dictum laid down by
the Hon'ble Supreme Court of Pakistan in Pakistan
Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109)
because of the specific bar given in the Banking Court Act, 1997, the Civil
Court had not jurisdiction and entertain and decide the matter. The learned
counsel also submitted that the judgment and decree and the sale by auction,
can only be challenged by filing the petition under Order 21, Rule 92 CPC and
the learned trial Court rightly rejected the plaint whereas the learned
appellate Court accepted the appeal on a flimsy ground not available in the
law. The learned counsel has also placed reliance on S.M. Shafi
Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338).
4. The respondent
present in person, submitted that the Civil
Court has the jurisdiction to entertain and decide
the matter as the learned Banking
Court has auctioned the undivided property of the
petitioner and the petitioner has already filed a suit for partition, which is
still pending adjudication. The respondent again and again submitted that the
land auction by the Banking Court was neither mortgaged nor pledged with the
Bank and the same is owned by the respondent, therefore, the Civil Court can
take the cognizance of such type of illegalities, if committed by any one but
the respondent has failed to cite any law to confront the contention raised by
the learned counsel for the petitioner regarding the maintainability of the
suit before the Civil Court.
5. I have heard
the learned counsel for the petitioner as well as the respondent in person and
perused the record.
6. Undeniably, the
petitioner purchased the land in question in open auction being highest bidder
conducted by the learned Banking Court No. 4, Lahore to execute a decree passed by the said
learned Court. In the aforesaid Banking Court Act, 1997, Section 27 deal with this proposition whereby the jurisdictional of the
Civil Court
to entertain the matter relating to the affairs of the Banking Company has
barred. Further, the judgment referred by the learned counsel for the
petitioner is very much clear on the point and there is no cavil with the
proposition that the Civil Court
had no jurisdiction particularly in such like cases to entertain a civil suit
wherein the judgment and decree or any action of Banking Court has been challenged. The
learned appellate Court in a very novel way has observed in Para-7 of the
judgment that "no where in this
section (Order 21,
Rule 89 CPC)
has been mentioned that Civil Court cannot sit in a
judgment if some auction has been made regarding the property of a person who
has interested in the same. The only remedy available to the respondent to
challenge the validity of the sale made in favour of
the petitioner in pursuance of an auction conducted by the learned Banking
Court IV, Lahore by filing an application/objection petition before the learned
Banking Court, who had the jurisdiction to validate or invalidate the auction,
if not conducted in accordance with law. The learned appellate Court has
committed jurisdictional defect, legal infirmity and material irregularity by
accepting the appeal and set aside the judgment and decree passed by the
learned trial Court.
7. For the
foregoing reasons, this petition is allowed with no order as to costs.
(R.A.) Petition allowed.