ORDER SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTANJUDICIAL DEPARTMENT
FAO No.46-2014
Muhammad Khan
Versus
ZTBL
S. No. of
order/
Proceeding
Date of
order/
Proceeding
17.3. 2014
Order with signature of Judge, and that of
parties or counsel, where necessary
Mr. Muhammad Suleman Bhatti, Advocate.
This appeal is directed against the order dated
6.2.2014 passed by learned Judge Banking Court
No.1,
Multan,
whereby
be
turned
down
two
applications of the appellant seeking to produce
secondary evidence in respect of certain documents
specified therein as well as to produce certain
witnesses to prove the contents of the copies of
those documents.
2.
This appeal arises out of a suit for declaration
instituted by the appellant on 22.10.2004, in which
leave to defend was granted to the defendant, Zari
Taraqiati Bank Limited (ZTBL), whereafter the suit
was set down for the recording of evidence of the
2
FAO No.46-2014
appellant/plaintiff.
On 23.2.2006, he made an
application along with a notice to be served upon
the defendant, impressing upon it to admit and
produce the documents mentioned in the notice, in
terms of Order XII, Rules 2 and 8 CPC read with
Article 77 of the Qanoon-e-Shahadat Ordinance,
1984. The defendant contested the application but
the Banking Court allowed the same vide order
dated 03.12.2009.
3.
On 14.4.2010, the appellant/plaintiff came up
with another application purportedly under Articles
76 and 77 of the Qanoon-e-Shahadat Ordinance,
1984. The thrust of the application was that the
plaintiff be allowed to produce secondary evidence
regarding the documents which were said to be in
the custody of the defendant and were earlier
required by him to be produced in the wake of the
notice served upon the defendant. He also moved
another application seeking to summon witnesses
to prove the copies of the documents mentioned in
the application. These applications did not find
favour with the Banking Court, which dismissed
them vide consolidated order dated 06.2.2014.
3
FAO No.46-2014
4.
Feeling aggrieved by the aforesaid order dated
06.2.2014
the
plaintiff
has
filed
this
appeal
purportedly under Section 22 of the Financial
Institutions
(Recovery
of
Finances)
Ordinance,
2001.
5.
Learned counsel for the appellant appeared
poised to question the legality, correctness and
validity of the impugned order, but we were
interested to know as to how this appeal is
competent. The impugned order cannot by any
stretch of imagination be regarded as a final order
within the meaning of sub-section (1) of Section 22
of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, qualifying it for an appeal before
this Court. On the other hand, sub-section (6) of
Section 22 abridges, curtails and takes away the
right of appeal in regard to a category of orders
specified therein, including an appeal against an
“interlocutory order” of the Banking Court which
does not disposes of the entire case before the
Banking Court”. However, an exception has been
made even in case of interlocutory orders passed
under sub-section (I) of Section 15 or sub-Section
(7) of Section 19 of the Ordinance (ibid).
For the
4
FAO No.46-2014
present, it is safe to hold that the order impugned
before us does not fall within the category of the
exceptional
interlocutory
orders
susceptible
of
appeal.
6.
For better appreciation of the subtle issue
involved, sub-sections (1) and (6) of Section 22 of
the Financial Institutions (Recovery of Finances)
Ordinance, 2001 are reproduced hereunder:
“22(1) Subject to sub-section (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. (Emphasis added)
(6) No appeal, review or revision shall lie
against
an
application
order
for
accepting
leave
to
or
rejecting
defend,
or
any
interlocutory order of the banking Court which
does not disposes of the entire case before the
Banking Court other than an order passed
under sub-section (i) of Section 15 or subsection (7) of Section 19.” (Emphasis added)
7.
While sub-section (1) of Section 22 (supra)
confers an absolute right upon an aggrieved person
to assail the validity of a judgment, decree, sentence
or final order (emphasis added), sub-section (6)
circumscribes
it
and
hedges
it
respecting
5
FAO No.46-2014
interlocutory orders. It is noteworthy that while
sub-section (1) uses the word “may” implying the
permission to file an appeal, sub-section (6), in
contradistinction,
opens
with
the
imperative
language, employing the words “No appeal, review
or
revision
shall
lie
against
…………
any
interlocutory order of the Banking Court”. The
choice phraseology used by the legislature to
emphasis two facets of the same coin leaves no
room for doubt that it intended to stonewall a
challenge to interim or intermediate or interlocutory
orders, with the underlying object to let the
suits/cases tried by the Banking Court conclude
within the shortest possible time. In other words,
the law on the subject is so designed as to allow the
matters proceed apace, without any hiccup.
8.
Black’s Law Dictionary (Sixth Edition) defines
final order as under:“One which terminates the litigation between
the parties and the merits of the case and
leaves nothing to be done but to enforce by
execution what has been determined.”
9.
The words “final order” and “an interlocutory
order” have repeatedly come up for consideration
6
FAO No.46-2014
before the superior Courts in the subcontinent. In
(10 Rang.335). It was held as under:
“A final order means an order which
finally disposes of the rights of the
parties. (54 all 401). The real test for
determining whether the order is final
ought to be this: “Does the judgment or
order, as made, finally dispose of the
rights of the parties”? If it does, then it
ought to be treated as a final order; but if
it does not, it is then an interlocutory
order. Whether an order is final or not
depends on the facts of each case.”
Similarly in AIR 1933 P.C. 58, Sir George
Lowndes observed:
The finality must be a finality in relation
to the suit. If, after the order the suit is
still alive in which rights of the parties
have still to be determined, no appeal lies
against it. The fact that the order decides
an important and even a vital issue is by
itself not material. If the decision on an
issue puts an end to the suit, the order
will undoubtedly be a final one.”
10. In order to constitute a final order, it
is necessary that the order should be one
by which the suit or the proceeding is
finally disposed of whichever way the
decision
went.
The
decision
of
an
important and vital issue which may
ultimately
affect
the
fate
of
the
7
FAO No.46-2014
proceeding is by itself not enough. The
test
to
be
applied
is,
whether
the
proceeding is disposed of completely and
the case is not kept alive for being dealt
within the ordinary way.
It is then necessary for determining
whether the order is a final order, to note
what its effect will be, if it were decided
the other way. If the order is such as
would
dispose
of
the
proceeding
if
decided one way, but would not have that
effect, if it were decided the other way,
the order would not be a final order. The
final
order
must
contain
a
final
adjudication of the matter in contest
between the parties to the action.
11. From the facts set out in the preceding
paragraphs, it is pretty clear that the suit instituted
by the appellant is still pending adjudication, and
the controversy raised therein is yet to be disposed
of by the banking Court seized with it. As and when
it washes its hands of, the appellant, if felt
dissatisfied with the final outcome, may bring it
under challenge, by filing an appeal before this
Court in terms of Section 22 of the Financial
Institutions
(Recovery
of
Finances)
Ordinance,
2001. Should things come to this pass, the
8
FAO No.46-2014
appellant would be at liberty to challenge all the
intermediate/interim/interlocutory orders in the
main appeal.
12. The upshot of the above discussion is that this
FAO is not maintainable. Incompetent as it is, the
same is dismissed in limine.
(SHUJAAT ALI KHAN)
JUDGE
(MAHMOOD AHMED BHATTI)
JUDGE
Approved for reporting
JUDGE
Rana Zahid Bashir*
JUDGE
9
FAO No.46-2014