Mst. SAMRANA NAWAZ vs M.C — 2021 PLD 581 SUPREME-COURT

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Mst. SAMRANA NAWAZ VS M.C.B. BANK LTD. O.XXI, R. 90, Second Proviso---Second proviso to O.XXI R.90, C.P.C.---Interpretation and scope---Sale of mortgaged property---Judgment debtor objecting to sale---Question as to whether a 20% deposit of the auction price was obligatory for an objector without an order by the Banking Court requiring the same to be deposited in terms of second proviso to R. 90 of O.XXI, C.P.C.---Held, that the second proviso to O.XXI, R. 90, C.P.C. ('the second proviso') contemplated a prior direction of the court to deposit the sum or furnish the security for entailing penal consequences of dismissing the objection petition due to non-deposit of the amount or non-furnishing of the security, which was required to be deposited or furnished under the second proviso for entertaining the objection petition---Punitive action could be taken only when the applicant failed to comply with the direction of the court, and in absence of such direction the objection petition could not be dismissed for non-deposit of the 20% of the sum realised at sale---Expression "as the Court may direct" used in the second proviso left little room to speculate whether the applicant/objector was to deposit the 20% of the sale amount at the time of filing the objection petition or at a subsequent stage under direction of the court---Furthermore the expression "such amount not exceeding twenty percent" further strengthened the position that the amount required to be deposited by the applicant/objector was to be determined by the court which must not exceed twenty percent of the sale amount but could be less than that---Applicant could not anticipate what the direction of the court would be in such regard and, therefore, he cannot deposit the requisite amount at the time of filing the objection petition---Mandatory requirement of the second proviso appeared to become operative only once the court determined the "amount not exceeding twenty percent of the sum realised at the sale" and directed the applicant/objector to deposit the same---Supreme Court observed that said interpretation of the second proviso was, however, in contrast to the view expressed by a three-member Bench in the case of Habib and Company v. MCB (PLD 2020 SC 227), and according to established practice and procedure the present three member Bench was bound by the view in the said case; that since only a Bench larger than the present three member Bench could reconsider the question as to the interpretation of the second proviso, and revisit (if found necessary) the view expressed by the three member Bench in the case of Habib and Company v. MCB (PLD 2020 SC 227), therefore, office should place the matter before the Chief Justice for appropriate order. Citation Name: 2021 PLD 581 SUPREME-COURTBookmark this Case Mst. SAMRANA NAWAZ VS M.C.B. BANK LTD. Judgments of the Supreme Court---Binding precedent---Scope---Earlier judgment of a Bench of the Supreme Court was binding not only upon the Benches of smaller numeric strength but also upon the Benches of coequal strength; a Bench of co-equal strength could not deviate from the view held by an earlier Bench, and if a contrary view had to be taken, then the proper course was to request the Chief Justice (of the Supreme Court) for constitution of a larger Bench to reconsider the earlier view---Smaller Bench cannot request for the constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a Bench of co-equal strength can make such a request---As a judgment of a larger Bench was binding on the smaller Benches, judicial discipline and propriety demanded that a two member Bench should follow decision of a three member Bench, and if a two member Bench concluded that an earlier judgment of a three member Bench was so incorrect that in no circumstances could it be followed, the proper course for it was to set out the reasons why it could not agree with the judgment of the three member Bench and to refer the matter to the Chief Justice for constitution of a three member Bench---If the three member Bench also came to the conclusion that the earlier judgment of a three member Bench was not correct, then the reference of the matter to a five member larger Bench was justified---Two member Bench cannot jump over a three member Bench and directly ask for constitution of a Bench larger than three member Bench, to review the principle of law declared by that Bench.

Mst. SAMRANA NAWAZ vs M.C — 2021 PLD 581 SUPREME-COURT

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