(a) Customs Act (IV of 1969)---

----Ss.217(2) & 194-C---Civil Procedure Code (V of 1908), S.79-- Constitution of Pakistan (1973), Art. 174---Suit against Customs, Central Excise and Sales Tax Appellate Tribunal and functionaries of the Customs Department---Maintainability---"Special jurisdiction" and "general jurisdiction" ---Former ousts the latter---Special jurisdiction is conferred and created under the special enactment and the moment such jurisdiction is created, general jurisdiction conferred on the Civil Court is ousted provided the jurisdiction so created under the Special Law confers jurisdiction to decide the controversy raised before the Civil Court---If a hierarchy is provided for to challenge such orders, Civil Court will not assume the role of the Appellate Court, as by entertaining such controversies, it will stretch its jurisdiction and encroach upon jurisdiction of another forum---Suit against Customs, Central Excise and Sales Tax Appellate Tribunal, which is deemed to be Court cannot be entertained by Civil Court/High Court in exercise of its original civil jurisdiction---Suit against the Tribunal, therefore, is not maintainable to challenge the manner of exercise of jurisdiction by the Tribunal---If the Tribunal passes an order which is not in. accordance with law then the remedy is to assail such order before the Appellate forum provided under the Customs Act, 1969 itself---Neither Appellate Tribunal, nor the Collector of Customs were body corporate of persons who in their personal designated capacity could be impleaded and sued for the acts done in purported exercise of their jurisdiction---No suit to challenge the decision of the Tribunal, therefore, can be filed in view of the bar contained in S.217(2), Customs Act, 1969---Principles.

Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; Khalid Mehmood v. Collector of Customs. Custom House, Lahore 1999 SCMR 1881; The President-Referring Authority v. Mr. Justice Shaukat Ali PLD 1971 SC 585; Mst. Khadija Karim v. Zia-ur-Rehman Khanzada and 7 others PLD 1999 Kar. 223; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16; IDBP v. Allied Bank of Pakistan - PLD 1986 SC 74; Philips Electrical Industries of Pakistan Limited v. Pakistan and others 2000 YLR 2724; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad 1997 SCMR 1874; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board; Karachi and others 1985 SCMR 758; Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan, Islamabad and 7 others PLD 1997 Lah. 643; Collector of Customs, Port Muhammad Bin Qasim, Karachi and 2 others v. Algemenet Annnnemingsmattschappij D. Blankevoort & ZN. B.V. and another HCA No.255 of 1999; Collector of Central Excise, Karachi and 2 others v. Messrs Shell Pakistan Limited and others H.C.As. Nos.185 to 289 of 1999; Collector of Customs (Appraisement), Karachi and 2 others v. Messrs K.G. Traders (Clearing and Forwarding Agents) and 2 others H.C.A. No.213 of 1997; Khalid Mehmood's case 1999 SCMR 1881; Gadron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Collector of Customs, Customs House, Lahore and 3 others v: Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad 1999 SCMR 138; Sindh Industrial Trading Estate Ltd. v. Central Board of Revenue PLD 1975 Kar. 128; Abdul Karim and 2 others v. The Province of the Punjab through the Collector, Muzaffargarh and another PLD 1994 Lah. 334; Haji Razak v. Usman and 9 others PLD 1975 Kar. 944 and Fauji Foundation and others v. Yousuf 1985 CLC 2799 ref.

(b) Customs Act (IV of 1969)-----

----S.194-C---Order-in-original had been challenged before the Tribunal at Quetta ---Mere fact that some of the sitting of the' Tribunal had taken place at Karachi would not give cause of action at Karachi, in such a situation, it was the dominant cause of action that would govern the jurisdiction in such matter.

Sandlalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue PLD 1997 SC 334; Abdul Rahim Baig v. Abdul Haq PLD 1994 Kar. 388 and Mehboob Ali Soomro v. S.R.T.C. 1999 CLC 1722 ref.

(c) Customs Act (IV of 1969)-----

----Ss.194-C & 195-B---Appellate jurisdiction of Customs, Central Excise and Sales Tax Appellate Tribunal---Nature, scope and extent discussed at length.

Khawaja Shams-ul-Islam for Plaintiffs.

Raja M. Jrshad and S. Tariq Ali, Standing, Counsel for defendant No.2.

Akhter Hussain for Defendant No.3.

Date of hearing: 9th April, 2003.

ORDER

Listed application i.e. C.M.A. No. 10955 of 1999 under Order VII Rule 11, C.P.C. for dismissal of the suit has been filed, inter alia, on the grounds that the suit is barred under sections 16, 19 and 20 of Civil Procedure Code as the subject-matter of the dispute is beyond the territorial jurisdiction of this Court. Secondly, suit is 'barred under subsection (2) of section 217 of the Customs Act. Counter-affidavit and affidavit-in-rejoinder have been exchanged.

Briefly facts as may be necessary for disposal of this Application are that, the Plaintiff imported a ship for scrapping. It is claimed that date on the Bill of Entry was tampered by some officials of Customs to deprive the plaintiff of exemption. of duties. Show-cause, notice issued to the plaintiff by Collector Customs Quetta was contested, followed by Order-in-Original against the Plaintiff. Such Order was assailed in appeal before the Appellate Tribunal Quetta being Custom Appeal No.Q-24 of 1996. There was difference of opinion between two members Bench of the Appellate Tribunal, consequently larger Bench was constituted as required under section 195-C(5) of the Customs Act. On 6-12-1999 full Bench heard the arguments, while reserving the judgment, Bench stayed the recovery of impugned demand subject to furnishing Bank Guarantee, giving cause to the plaintiff to file instant suit claiming following reliefs:--

(a)Declare that the plaintiff No.1's ship, T.T. Mona arrived on 26-10-1995 and the Bill of Entry was filed on the same day.

(b)Declare that the plaintiff No.1 is exempted from paying the regulatory duty as they filed the Bill of Entry on 26-10-1995, when no regulatory duty was in the field.

(c)Declare that the belated show-cause notice, dated 4-1-1996 is time-barred in terms of sections 168 and 180 of the Customs Act, 1969, hence entire proceedings including the Order-in Original are illegal, time-barred, without jurisdiction and liable to be set aside.

(d)Declare that the order of the learned Member Judicial, dated 3-8-1998 is just, proper and legal as it is based on proper reading of law, facts and record, therefore, the plaintiffs are exonerated from above charges leveled in the alleged show cause notice and Order-in-Original.

(e)Declare that the Order of the learned Member Technical is without jurisdiction, illegal, as it is based on misinterpretation of law, records, and facts and liable to be set aside.

(f)Permanent injunction restraining the defendants, specially the defendant No.3 or their employees, agents, servants or any other persons acting for or on behalf of the defendants from making any demand for short recoveries or for enforcement of the impugned regulatory demand and/or from taking any adverse action or other actions whether direct or indirect for the recovery of the said amount.

(g)Direct the defendants not to take further adverse action against the plaintiffs.

(h)Permanent injunction restraining the defendants from declaring the plaintiffs as defaulter.

WITHOUT PREJUDICE TO THE FOREGOING AND/OR IN THE ALTERNATIVE.

(i)Declare that the actions of the defendants; specially defendant No. 3, are corum non judice.

(j)Declare that the issuance of show-cause notice and Order-in -Original are violative of fundamental rights guaranteed to the plaintiffs specially under Article 13 of the Constitution.

(k)Grant mandatory injunction suspending the embargo placed by defendant No.3 upon the plaintiff's breaking business.

(l)Permanent injunction restraining the defendant No. 1 from passing or announcing any order pursuant to order, dated 6-12-1999.

(m)Grant any other relief which this Hon'ble Court may deem fit and proper under the above circumstances.

(n)Cost of the suit.

Mr. Akhter Hussain, learned counsel for the defendant No.3, inter alia, contended that this Court has no jurisdiction, as the reliefs claimed in prayer clauses (a), (b) and (c) all relate to the Province of Balochistan, this Court has no territorial jurisdiction. In relation to prayer at clause (d), it was argued that under section 194-C(8) of the Customs Act, the Appellate Tribunal is deemed to be a Court and proceedings before it are deemed to be judicial proceedings, therefore, no declaration and/or injunction in relation to its functioning could be granted. According to him, if the plaintiff is aggrieved by outcome of an appeal, same could be impugned before this Court in its Appellate Jurisdiction under section 196 of the Customs Act. In support of his contention that once a party invokes the hierarchy of a forum provided under an enactment cannot switch over to another. Reliance was placed on Al Abram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29). It was further contended that since the Customs Act, 1969 has undergone various changes including extending hierarchy up to this Court in appeal direct approached to this Court in another jurisdiction is not appreciable and such tendency was deprecated in the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881) relevant page at 1887.

Mr. Akhter Hussain, learned counsel for the defendant No.3 also challenged the frame of suit, it was argued that the suit has not been instituted against the federation of Pakistan through Ministry of Finance as according to him the concerned Secretary is Secretary Revenue Division. Secondly; Collector of Customs cited as defendant No.3 could not be sued in view of the case-laws reported as (1). The President Referring Authority v. Mr. Justice Shaukat Ali (PLD 1971. SC 585) relevant Page at 625, (2) Mst. Kadija Karim v. Zia-ur-Rehman Khanzada and 7 others (PLD 1999 Karachi 223) and (3) Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar (1999 SCMR 16).

Augmenting the arguments of Mr. Akhter Hussain, Mr. S.1 Tariq Ali, learned Standing Counsel appearing no behalf of the defendant No.2 contended that the very suit smacks mala fide, he has drawn my attention to para. 18 of the plaint, wherein, the plaintiff had narrated that since he has been called upon to furnish the Bank Guarantee of the disputed amount the suit has been filed. He has further drawn my attention to para 20 of the plaint to stress that through instant suit plaintiff wants to bye-pass the statutory provisions of the Customs Act. He cannot claim any right in the choice of forum reliance was placed on IDBP v. Allied Bank of Pakistan (PLD 1986 SC 74).

In contra, Mr. Khawaja Shams-ul-Islam, appearing for the plaintiff vehemently opposed the application. According to him, the matter only relates to the forgery committed in respect of the Bill of Entry filed on 26th October, 1995, whereas, according to him, some notorious officials of the Customs Department tampered with the dates and made it to read 29th October, 1995 so as to deprive the plaintiff of the exemption in the Customs duty that was levied on 29th October, 1995, which controversy, according to him could only be examined by Civil Court. He further contended that the Benches of the Customs and Excise Tribunal in terms of the standing instructions hold sitting at Karachi, therefore, cause of action accrued at Karachi. He further dilated on the bias conduct of the Members of the Tribunal. Which according to him was also deprecated in a case reported as Philips Electrical Industries of Pakistan Limited v. Pakistan and others (2000 YLR 2724). Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiff attempted to distinguish the case reported in Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334) relied upon by Mr. Akhter Hussain, learned counsel for defendant No.3. According to him said case was distinguished in Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad (1997 SCMR 1874) relevant page at 1886. He contended that where a Tribunal has jurisdiction all over the Pakistan then a person can question the act of such Tribunal anywhere it holds its sitting or where cause of action may arise. In support of his contention, he placed reliance on Messrs Al Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) (relevant page at 763) which was followed by a full Bench reported in Gulzar Ahmad Khan v. The Chief Election Commis sioner of Pakistan, Islamabad and 7 others (PLD 1997 Lahore 643).

Controverting the arguments as to the frame of the suit, it-was contended that, the defendant No.3 is a person designated and defined under section 3 of the Customs Act are statutory offices. According to him, even Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 permits filing of the writ petition against persons performing function in connection with the affairs of the State. According to him, such aspects were not adverted to in the case of Mst. Khadija . Karim v. Zia-ur-Rehman Khanzada and 7 others (PLD 1999 Karachi 223) relied by Mr. Akhter Hussain, learned counsel for defendant No.3. Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiff vehemently argued that the impartial Tribunal and proceedings in accordance with law is the fundamental right of every citizen. He has drawn my attention to the notification, dated 29th February 2000, whereunder, Chairman-cum Judicial Member of 'the said Tribunal was terminated on account of his conduct and challenged to the frame of the suit on such count according to him was not favoured in number of judgments. Unreported Judgments cited, at bar, i.e. (1) Collector of Customs, Port Mohammad Bin Qasim, Karachi and 2 others v. Algemenet Annnnemingsmattschapptij D. Blankevoort & ZN. B.V. and another (H.C.A. No.255 of 1999 decided by a Division Bench of this Court on 3-11-1999). (2) Collector of Central Excise, Karachi and 2 others v. Messrs Shell Pakistan Limited and others (H. C, A. Nos. 185 to 289 of 1999 decided by a Division Bench of this Court through a common Judgment and (3) Collector of Customs (Appraisement), Karachi and 2 others v. Messrs K.G. Traders (Clearing and Forwarding Agents) and 2 others (H.C.A. No. 213 of 1997 decided by a D.B. of this Court on 1-6-1999).

Learned counsel also contended that in Khalid Mehmood's case [1999 SCMR 1881 (relevant page at 1887)], the apex Court preserved the jurisdiction of Civil Court where forum created by sub-Constitutional legislation exercise jurisdiction erroneously and illegally. According to him section 217 of the Customs Act is sub-Constitutional legislation cannot take away the jurisdiction of this Court created under the Constitution. He has placed reliance on Gadron (Industries) Limited -v. Government of Pakistan and others (1999 SCMR 1072) and Collector of Customs, Customs House. Lahore and ,3 others v. Messrs S.M. Ahmad and Company (Pvt.) Limited, Islamabad (1999 SCMR 138). In rebuttal to the contention of learned counsel for the defendants that once plaintiff having surrendered to the jurisdiction of a hierarchy provided under the Customs Act, he cannot, subsequently challenge the jurisdiction. Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiff argued that there is no estoppel against the law- and - jurisdiction of Civil Court cannot be taken away. In support of his contention, he has 'placed reliance on [Sindh Industrial Trading. Estate Ltd. v. Central Board of Revenue (PLD 1975 Karachi 128 (D.B.)); and Abdul Karim and 2 others v. The Province of the Punjab through the Collector, Muzaifargarh and another (PLD 1994 Lahore 334). He further contended that a declaratory relief of the nature sought in the instant suit could very well be granted by this Court as such jurisdiction is akin to writ jurisdiction. Reliance was upon the case-laws reported as Haji Razak v. Usman and 9 others (PLD 1975 Karachi 944) and Fauji Foundation and others v. Yousuf (1985 CLC 2799).

Exercising right of rebuttal, Mr. S. Tariq Ali, learned Standing Counsel contended that in the case of Flying Kraft Paper Mills (1997 SCMR 1874), objections as to the jurisdiction were riot taken in the first available opportunity, whereas, in the instant case, such objections were raised very promptly, therefore, the dicta laid down in Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue (PLD 1997 SC 334) were not disturbed.

Mr. Akhter Hussain, learned counsel for the defendant No.3 contended that all the objections regarding the bias and prejudicial conduct of learned Tribunal and the other issues raised by the plaintiff or all legal issues and same could be raised and agitated in appeal under section 196 of the Customs Act. He has further contended that most of the sittings of the Tribunal were held at Islamabad and not at Karachi as asserted by counsel for the plaintiff.

Having heard the arguments of learned counsel for the parties at length, perused the material available on record and thoroughly scanned the case-law as cited at bar.

The challenge to the jurisdiction of this Court was raised on two counts firstly that suit as framed is not maintainable and without impleading the Federation of Pakistan through its concerned Secretary or the relevant Ministry as provided in terms of section-79, C.P.C. and Article 174 of the Constitution of Islamic Republic of Pakistan, 1973. In the instant suit, the plaintiff has filed the same against the Customs. Central Excise arid Sales Tax Appellate Tribunal, the Tribunal is deemed to be a Court and the proceedings before it a judicial proceedings. At the very outset, a special jurisdiction has been conferred and created under the special enactment the moment such jurisdiction is created. general jurisdiction conferred on the Civil Court is ousted provided jurisdiction so created under the special law, confers jurisdiction to decide the controversy raised before the Court then it matter little for the Civil Court whether such jurisdiction has been properly or improperly exercised. If a hierarchy is provided for to challenge such orders, Civil Court will not assume the role of the Appellate Court, as entertaining such controversies it will overstep its jurisdiction and encroach upon jurisdiction of another forum. Therefore, in my humble opinion, the suit as against the Tribunal which, is deemed to be Court cannot be exercised by this Court in exercise of its civil original jurisdiction. The suit as against the Tribunal on the face of it is not maintainable to challenge the manner exercise Tribunal its jurisdiction. In case the Tribunal passes an order which is not in accordance with law then the remedy is to assail such orders or decision before the Appellate forum provided under the Act itself. As neither defendant No.1, the Appellate Tribunal nor the Collector of Customs, the defendant No.3 are body corporate or persons who in their personal designated capacity could be impleaded and sued for the acts done in purported exercise of its jurisdiction. No suit to challenge the decision of Tribunal could be filed in view of the bar contained in subsection (2) to section 217 of Customs Act. Objection as to the maintainability of suit was raised on the ground of territorial jurisdiction of this Court as it could be seen from the prayer clauses as reproduced above.

The prayer clause (a) above is in respect of a vessel and a Bill of Entry in respect thereof was filed in Balochistan. The exemption claimed is in respect of the same vessel, show-cause notice which has been impugned in clause (c) was issued by the Customs Authorities stationed at Balochistan. The Order-in-Original has been challenged before the Tribunal at Quetta. Mere fact that some of the sittings of the Tribunal took place at Karachi will not give cause of action at Karachi. In such a situation, it is dominant cause of action that will govern- the jurisdiction in such matter and the reliance could be placed on (i) Sandalbar Enterprises (Pvt) Ltd. v. Central Board of Revenue PLD 1997 SC 334), (ii) Abdul Rahim Baig v. Abdul Haq (PLD 1994 Karachi 388), and (iii) Mehboob Ali Soomro v. S.R.T.C. (1999 CLC 1722). Therefore, for all intents and practical purposes dominant or the principal cause of action, p if any, subject-matter of the suit had arisen in Balochistan and even this Court lacks of territorial jurisdiction in respect of the subject-matter of the suit.

Now adverting to question of bar and plenary jurisdiction of this Court, pivotal question revolves around the jurisdiction of this Court. Civil Courts are the Courts of ultimate jurisdiction. In terms of section 9 of C.P.C. Civil Courts exercise the jurisdiction in all matters of civil nature unless it is expressly or impliedly barred. The question of express bar often has been debated in Courts whereas the question of implied bar has not come up for consideration as often. By express bar generally it means where the jurisdiction of Civil Court is expressly taken away by incorporating barring provisions. In the instant case, it has been specifically asserted that in terms of section 217(2) of the Customs Act, the jurisdiction of this Court is, barred: For ready reference, provision of section 217 is reproduced as follows:--

"Protection of action taken under the Act.---(1) No suit, prosecution or other legal proceedings shall lie against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of this Actor the Rules.

(2) No suit shall be brought in any Civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act. "

Main grievance of the plaintiff is that the learned Tribunal while reserving the judgment, directed the plaintiff to furnish Bank Guarantee. Contention of learned counsel that such directions are perverse, It is not the case of the plaintiff that the Tribunal had no jurisdiction in the matter. In the case of Sultan Ali v. Noor Hussain (PLD 1949 Lahore 301) in Election matter, Election Commissioner closed the side and fixed the matter for arguments, such order was assailed in a suit seeking declaration that the Election Commissioner had unjustly refused to plaintiff the right to appear in evidence as his witness as well as right to examine on commission a witness who was then in India. Injunction was sought from further proceedings before the Election Commission before the decision in suit. Repelling such contention a learned Full Bench by majority held that "where a special Tribunal out of ordinary Court is appointed by an Act to determine the question as to rights which are creation of that Act then except so far as otherwise expressly provided or necessarily implied that the Tribunal's jurisdiction to determine those questions is exclusive." At page 344, it was further held that "in fact civil suit arose out of an order made by a Commissioner itself. There is no question of the improper constitution of the Tribunal or of its having exceeded its jurisdiction in the sense that it pronounced on a matter which was not within its competency. The Tribunal was properly constituted, it did not function and it functioned in a matter which had been entrusted to it by the statute. These conditions being satisfied its decision, right or wrong is final and cannot be called in question in Civil Court." It was further held at same page that "it is true under the law, the Commissioner was bound to observe the rule of Civil Procedure but it is impossible to contend that merely because a Court governed by the rules Civil Procedure refuses to grant an adjournment or to issue a commission for the examination of witness in a foreign country, whatever ground of such refusal may be it exceeds the jurisdiction vested in it by law."

In the instant case also, the Tribunal constituted under the Customs Act is seized of the appeal filed by the appellant. The Tribunal comprised of two (2) learned Members, however, in view of the difference of opinion the matter was referred to a Bench consisting of three (3) learned Members. The provisions relating to an appeal are contained in sections 194-C and 195-B of the Customs Act; 1969, which reads as follows:---

194-C. Procedure of Appellate Tribunal.--(1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches 'constituted by the Chairman from amongst the members thereof.

(2) Subject to the provisions contained in subsections (3) and (4), a Bench shall consist of one judicial member and one technical member.

(3) Every appeal against a decision or order relating among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member- and one technical member:

Provided that the Chairman may, for reasons to be recorded in writing; constitutes Benches including Benches consisting of-

(a) two or more technical members; or

(b)two or more judicial members:

Provided further that any Bench referred to in clause (a) shall not hear the matters involving questions of law.

(3-A) .....................

(4) ...................

(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the Chairman for hearing on such points or point by one of more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal having heard the case including those who first heard it:

Provided that, where the members of a Special Bench are equally divided, the points on which they differ shall be decided by the Chairman.

(6)...................

(7)...................

(8) ...................

195-B. Deposit, pending appeal, of duty demanded or penalty levied. ---Where, in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the Customs Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall pending the appeal, deposit with the proper officer the duty demanded or the penalty levied:

Provided that, where, in any particular case, or Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to safeguard the interests of Revenue "

As it can be seen from the above referred subsections (5) to section 195-C thereof in case of difference of opinion of two (2) members Bench, the difference is referred to a Larger Bench as has been C done in the instant case. Even in terms of section 195-B reproduced above, appeal could only be filed on deposit of the amount of duty or penalty as the case may be, however, the Appellate Tribunal is also competent to dispense with such deposit subject to such condition as it may deem fit to safeguard the interest of Revenue. It is not very uncommon even in this Court, where injunctive relief is claimed against recovery of monetary claim or public revenue, where injunctive orders are issued invariably party seeking such relief is put to terms including but not limited to the direction of furnishing security subject to final adjudication. It appears that in the instant case the Full Bench after hearing the parties, reserved the judgment on 6-12-1999 in the meanwhile Bank Guarantee was directed to be furnished. Plaintiff instead of furnishing Bank Guarantee chose to file instant suit on 16-12-1999 challenging such directions. Such direction appears to be in consonance with section 195-B above. In terms of section 194-C(8) the Appellate Tribunal is deemed to be a Court and proceedings before it are deemed to be judicial proceedings. A decision of an Appellate Tribunal has been made assailable before a Division Bench of this Court under section 196 thereof. In past, as regard agitating grievance pursuant to show-cause notices under the Customs Act remedy terminated at the Executive/Administrative level up to the Central Board of Revenue and Secretary Government of Pakistan by amending sections 194 to 196 of Customs Act the entire set-up for seeking remedy has undergone changed now the hierarchy extends to this Court in its Appellate Jurisdiction. A Tribunal set-up under the Customs Act possess all jurisdiction to pass final order including incidental and ancillary orders including the one assailed in the instant suit. There may be some lapse or no-observance of procedural requirement by the Tribunal or forum established under a statute but it does not mean that merely on such count a forum or Tribunal had failed to exercise or for that matter exceeded the jurisdiction so vested in it by law (sic) a party may such to Civil Court. As stated above, the Tribunal is not a `quasi-judicial authority' it is in' terms of section 194-C deemed to be a Court. All proceedings before it are a `Judicial Proceedings'. Now with the advancement and; development of special laws complications have arisen in, attending to a particular situation necessitating creating of special forum specialized; knowledge. Indeed Civil Court in case where no forum is available or, where the quasi-judicial forum has no jurisdiction to attend a complicated question of fact and law exercises its jurisdiction. But where the law creates rights and also provides a machinery and mechanism for the redressal of such grievance arising out of invasion of such right then in ,the first instant resort should be had to the remedy and the machinery so provided under the special law. Even in cases where statute itself does "not embody any barring provision, then also where a special enactment provides a hierarchy for redressal of grievance, such alternate and parallel system by implication excludes the general jurisdiction enjoyed by Civil Court under the General Law. Such rule of propriety is even under section 4, C.P.C. which preserves special jurisdiction powers conferred on a special forum under any law for the time being in force. The jurisdiction generally conferred in terms of section 9. C. P. C. does riot extend to an extent so as to encroach upon the domain, of another forum created under a Special Law. The apex Court since the decision in the case of Tariq Transport Company Lahore v. Sargodha Bhera Bus Services (PLD 1958 437) has maintained that where the statute creates right and also provides machinery for the enforcement of the right the party complaining of breach roust first avail himself of the remedy provided by the statute for such breach before he applies for a writ. Any indulgence to the contrary is calculated to create distrust in the statutory tribunal of a competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat legislative intent. Though said principle was laid down in exercise of writ jurisdiction but same principle with all force is also attracted where the suits are invariably filed challenging orders passed by special forums of Tribunals when availing of the remedy against their order or decision is so p vided under the special enactment itself. Such view was has followed in the case of Tariq Mehmood (supra). In the case of IDBP v. Allied Bank of Pakistan (PLD 1986 SC 74) and more recent judgment report as Commissioner of Income-tax v. Hamdard Dawakhana (Waqf) (PLD 192 SC 847). In the instant case, as discussed above, the Tribunal exercise the jurisdiction vested in it; in terms of section 195-B of the Custom Act, putting plaintiff on terms to furnishing Bank Guarantee. It was not shown that Tribunal had no such jurisdiction. Even otherwise in terms o section 217(2) no suit is maintainable to seek set aside or modify ny order passed, assessment made, or tax levied penalty imposed r collection of tax under the Customs Act. Impugned order was undoubtedly passed under the Act. If such tendency is encouraged then every or passed by a Tribunal will be agitated in Civil Court. Virtually rippling the very purpose of such Tribunal. Civil Court will not stretch its jurisdiction to encroach upon the jurisdiction of other forum as will negate the very purpose of law. Accordingly, in view of the foregoing, I am of the opinion that the suit is barred under section 217(2) of the Customs Act.

Therefore, in my humble opinion, plaintiff was not able to make out case for entertaining the suit by this Court and even otherwise besides the lack of territorial jurisdiction, in my humble opinion, the suit in present form is not maintainable. Accordingly, the, plaint is her y rejected under Order VII Rule 11, C.P.C. with costs to l the defendants.

M.B.A./D-50/KPlaint rejected.