FARRUKH LATIF, J.---With the concurrence of the parties this appeal is admitted for hearing.
2. A suit for recovery of Rs.14,53,962 with return/cost of funds, filed by the respondent-Bank against the appellant was decreed ex parte by Banking Court-II, Gujranwala on 9-9-2003.
3. On 11-11-2003 the appellant moved an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside the aforesaid ex parte decree on the ground that he was not served through any of the modes adopted by the Banking Court viz. bailiff of the Court, registered post A.D. and proclamation in the newspapers and at he had attained knowledge of the ex parte decree for the first time on 8-11-2003 from M.C.O. of respondent-Bank, Phalia Branch.
4. The application was opposed by the respondent- Bank and was ultimately dismissed by the learned Banking Court-II, Gujranwala on 15-11-2003.
5. Through this F.A.O. aforesaid order of the Banking Court is assailed by the appellant (judgment- debtor).
6. It is urged by the learned counsel for the appellant that the application was dismissed by the Banking Court in a slipshod manner without affording opportunity to the appellant to produce evidence in support of his application; that there was nothing on record on the basis of which it could have been inferred that service was effected on the appellant through post, courier or the bailiff of the Banking Court and that the Court had not bothered to satisfy that newspapers containing proclamation were sent under postal certificate to the address of the appellant.
7. The appeal is strongly opposed by the learned counsel for the respondent who during his arguments fully supported the impugned order and added that the appellant has not disputed his address given in the summons and the proclamation published in the newspapers.
8. We have heard the arguments and have also perused the impugned order as well as the documents annexed with the appeal.
9. A perusal of the impugned order shows that appellant's application was dismissed on the ground that it was barred by time inasmuch as substituted service was effected on the appellant through publication in daily 'Dawn' published on 24-7-2003, through daily 'Front' published on 6-8- 2003 and through bailiff of the Court on 1-8-2003. It was presumed that summons sent through Registered Post A.D must have been delivered to the appellant irrespective of the fact that acknowledged receipt was not returned. Another reason for dismissing the application was that affidavit of the M.C.O. from whom the appellant had allegedly attained knowledge of the ex parte decree was not annexed in support of the said assertion.
10. Under section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, Banking Court was required to adopt following four modes of service:--
(i) Through bailiff or Process Server of the Banking Court;
(ii) By Registered Post A/D;
(iii) By Courier; and
(iv) By publication in one English language and one Urdu Language daily newspaper.
11. Ex parte judgment passed on 9-9-2003 shows that all the four modes mentioned above were not adopted by the Banking Court. Impugned order as well as ex parte order do not reflect that service on the appellant was also made through courier.
12. It is not denied that according to the report of bailiff, personal service on the appellant was not effect and B that the Banking Court had not ordered for service of the appellant through affixture.
13. The appellant had alleged in his application that he did not receive any summons through Registered Post A/D. Application was supported by his affidavit which was not rebutted by counter- affidavit of the respondent, hence, in the said situation there was no reason to disbelieve the appellant and to presume otherwise particularly in view of the fact that A/D receipt had not returned by the Post Office.
14. Under section 9(5) ibid Banking Court was required to ensure publication of summons in newspapers having wide circulation. Daily "Front" is a local newspaper having limited circulation only in two Districts i.e. Lahore and Sargodha whereas the appellant admittedly resides in District Mandi Baha-ud-Din. Neither the ex parte judgment nor the impugned order reflects that the Court had satisfied itself about the fact that substituted service of the appellant through publication in the newspapers was sufficient by ensuring that the newspapers containing proclamations were dispatched by the office of the concerned newspapers at the address of the appellant under postal certificate and that such certificate was available on record. Appellant had alleged in his application that proclamations published in the newspapers were never sent to him through post at his address. He also claimed that he was not well-educated and was not conversant with English language whereas other newspaper in Urdu language viz. "Front" has no circulation in the village where he resides.
15. So far as the non-submission of affidavit of M.C.O. of the respondent-Bank is concerned, it is a matter of common sense that a bank official could not take the risk of giving an affidavit which he knew was likely to be used; in litigation against the bank.
16. The appellant had given affidavit in support of the assertion that he had attained knowledge of the ex parte decree for the first time on 8-11-2003. There was no reason for disbelieving the said affidavit as it was not rebutted by counter-affidavit of the respondent. Application for setting aside the ex parte decree was filed by the appellant admittedly two days thereafter on 11-11-2003 hence it was ex facie within time and the appellant was, therefore, not required to file any application for condonation of delay.
17. We are, therefore, of the view that finding of the learned Banking Court that appellant's application was barred by time and that service was duly effected on him are incorrect and against facts.
18. Impugned order is, therefore, not sustainable. It is accordingly set aside and the appeal is accepted. Resultantly, application filed by the appellant under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, stands accepted and the ex parte decree passed by the Banking Court on 9-9-2003 is set aside. Appellant is entitled to file an application for leave to appear and defend the suit before the learned Banking Court within a period of ten days from the date of this judgment.