' Zulfiqar Ali Mumtaz, the appellant-defendant No,3, through the filing of the present appeal, has called in question order dated 23-4-1994, whereby Special Judge Banking, dismissed two applications, filed under Order IX, rule 13, C.P.C. For setting aside ex parte decree, dated 1-12-1980 and under section 5 of the Limitation Act for the condonation of delay.
2. Facts, relevant for the decision of the present appeal, are that the respondent-Bank filed a suit for the recovery of Rs.1,00,823, against Messrs Hanif Corporation etc, wherein the appellant was arrayed as defendant No,3. Learned Special Judge Banking issued summons through all the prescribed modes of service, under the relevant law, and as none of the defendants appeared, therefore, Special Judge Banking, passed an ex parte decree for the recovery of Rs.100,823 with interest and costs, vide judgment and decree dated 1-12-1980. The appellant, on 18-3-1989, filed two applications, one for the setting aside of the aforenoted ex parte judgment and decree dated 1-12-1980 and another for the condonation of delay, which applications were opposed by the respondent-Bank, and ultimately, learned Special Judge Banking, dismissed the said two applications, vide order dated 23-4-1994, hence the present appeal.
3. Learned counsel for the appellant has contended that the appellant did not receive any notice/summon about the institution of the suit, therefore, he was unaware either about the pendency of the suit or passing of the decree. He has further urged that there was "sufficient cause" for not preferring the application, under Order IX, rule 13, C.P.C., within the prescribed period, therefore, the delay of more than 8 years was liable to be condoned. Representative of the Bank has opposed this appeal.
4. Admittedly, suit for recovery was decreed ex parte, against the appellant and others, by the then Special Judge Banking, vide judgment dated 1-12-1980, while application for setting aside ex parte decree was filed on 18-3-1989, i.e. After the expiry of more than 8 years. Upon the examination of the record, we find that learned Special Judge Banking, issued process for the service of the defendants through all the modes of service and after finding that the publication has been effected in the newspaper, proceeded to pass an ex parte decree. There is no denial of the fact that the publication of summons was effected in the daily newspaper. Rule 8 of Banking Companies (Recovery of Loans) Rules, 1980 provides that service in any of the modes shall be deemed proper and valid service for the purposes of this Ordinance. As admittedly, the service of the appellant was effected through the publication in newspaper, therefore, it cannot be said that the appellant was not served in the suit. While dilating upon the similar issue, the Honourable Supreme Court of Pakistan in a case reported as Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497, has held as under:-- "The underline object of rule 8 is .To avoid the delay in service of the summons and, therefore, it has been provided that the summons are to be issued simultaneously in three different modes referred to hereinabove, which is the requirement of the above rule. Obviously for the reason that if the summon is not served through a bailiff or by a registered post acknowledgement due, it would be served in any case by publication. In other words, the service is to be held good if a defendant is served by any of the above three modes of service provided for in rule 8. The unamended Rule 8 was silent on the question, whether in order to hold service of summon good, it should be effected by all the three prescribed modes or whether service of the summons by one of the modes was sufficient."
"In view of conflicting judgments of High Court on the subject the framers of the Rules amending rules 8 by S.R.O. No, 71(1) of 1988, dated 31-1-1988 have resolved the controversy."
' Being guided by the aforesaid law declared by the apex Court of this country, we are of the firm view that the appellant was served in accordance with law, he neither appeared nor filed any application for the grant of leave to appear and defend the suit and thus, learned Special Judge Banking, having no alternative, rightly passed the ex parte decree against the appellant also.
5. As noted above, the application for setting aside ex parte judgment and decree was filed after the lapse of more than 8 years. In view of our findings, given hereinbefore, as the appellant was duly served on 1-12-1980, therefore, the application for setting aside the ex parte decree, filed on 18- 3-1989, was grossly barred by time, thus the same could not have been entertained and has rightly been dismissed by the learned Special Judge Banking, through the passing of impugned order.
Upon the examination of the contents of the application, filed by the appellant under Order IX, rule 13, C.P.C., we find that it has been averred in the said application that no notice through ordinary process or through registered envelope was sent to the appellant and that he was not aware of the filing of the suit as he was not served. Suffice it to say that this contention has duly been dealt with by us in the preceding paras. To our mind, the appellant was properly served, he did not file any application for leave to appear and defend the suit, thus, according to law, allegations levelled in the plaint sh.All be deemed to be admitted and the plaintiff shall be entitled to a decree. Reliance is placed on the aforesaid case of Messrs Ahmad Autos and another.
6. So far as application under section 5 of the Limitation Act, filed by the appellant, before the learned Special Judge Banking, we have perused the same and find that only ground urged by the appellant, in support of the said application, is that he was not aware about the passing of the decree and, therefore, the delay in filing the said application may be condoned. We are of the view that the appellant's application for setting aside the ex parte decree was grossly barred by time and even in this application no "sufficient ground" was made out for the condonation of delay.
Furthermore, as we have held earlier that the appellant was duly served, therefore, even this application was not justified and has rightly been dismissed by the learned Special Judge Banking.
7. We have examined the impugned order and find that the same is legal, apt to the facts and circumstances of the case and was passed in accordance with law on the subject and the facts on record. Even otherwise, learned counsel could not point out any legal infirmity warranting the exercise of the appellate jurisdiction of this Court, thus, we are not inclined to interfere in the impugned order and the same is hereby maintained.
8. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed with no order as to costs.