ABDUR RAHMAN FARUQ PIRZADA, J.-- By this revision application, the applicant has assailed the impugned order dated 25.2.2008 passed by learned Banking Court No. 1, Hyderabad on an application under Section 5 of Limitation Act filed by applicant/defendant No. 2 in Suit No 89/2007 titled: Habib Bank Limited v. Shakeel Ahmed and others whereby the learned Trial Court dismissed the application under Section 5 of Limitation Act.
2. Learned counsel for applicant has submitted that previously the applicant/defendant No. 2 had no knowledge regarding the pendency of suit before Banking Court No. 1, Hyderabad, and it was for the first time on 23.10.2007 when by chance he was standing outside the learned Trial Court, and he heard the call with regard to the same suit, whereupon he personally appeared before the learned Trial Court. It has been contended that service upon the defendants was held good by learned Trial Court on 23.10.2007, however, on the same date he had appeared and had also prayed for supply of the copies of plaint alongwith annexures, which copies were supplied to him on the same date, and the order was also passed on his application that 30 days time to defend the suit had already expired. Again on the next date of hearing viz. 2.11.2007 defendant No. 2 submitted application to extend the time for filing the application to defend the suit, but the order was passed and same application was dismissed as 30 days' time of limitation for filing the application under Section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 had already expired. Learned counsellor applicant has submitted that a huge amount is involved in the suit, and the interest of applicant/defendant No. 2 would be very adversely affected, in case this revision application is not allowed.
3. On the other hand, learned counsel for respondent No. 1 /plaintiff has submitted that service upon the defendants was effected in a proper and legal manner, as the service was made through publication in newspaper dated 16.9.2007. He has submitted that according to Section 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, there are three modes of service, which are mentioned therein, and if the service is duly effected in any one of the afore-said modes, the same shall be deemed to be valid service for the purposes of this Ordinance. According to him, after the publication in newspaper on 16.9.2007, the applicant/defendant No. 2 had appeared before the learned Trial Court on 23.10.2007, but even after the application for leave to defend alongwith the present application under Section 5 of Limitation Act were not filed promptly, but the same were filed after the lapse of about 27 days Viz. On 19.11.2007. Learned counsel for respondent No. 1 has further argued that applicant/defendant No. 2 was liable to explain the delay of each and every day in filing the said applications. On the legal aspect of the case, learned counsel for respondent No. 1 has drawn attention of this Court to provisions of Section 22(6) of the Ordinance, according to which no appeal, review or revision shall lie against any interlocutory order in the Banking Court, which does not dispose of the entire case before Banking Court other than the order passed under sub-section (11) of Section 5 or sub-section (7) of Section 11, as such, the present revision application before this Court would not be maintainable under the law. Thirdly, on factual aspect of the case, the learned counsel argued that even the application under Section 5 of Limitation Act filed by applicant before the learned Trial Court does not show any cogent ground for condonation of delay.
4. I have carefully considered the submissions made by both the learned counsel for respective parties.
5. Admittedly the service upon the defendants was affected through publication in newspaper on 16.9.2007. In pursuance of publication the learned Trial Court held the service good by an order dated 23.10.2007. For the sake of convenience the contents of Section 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001 may be reproduced as under:- "S. 9 Procedure of Banking Courts.
(1) ...............................
(2) ...............................
(3) ...............................
(4) ...............................
(5) On a plaint being presented to the Banking Court, summons in Form No. 4 in Appendix "B" to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other form is made, from time to time, be prescribed by rules, shall be served on the defendant through bailiff or process server of the Banking Court, by registered post acknowledgement due, by courier and by publication in one English language and one Urdu language daily newspaper and service duly effected in any one of the afore-said modes shall be deemed to be valid service for purpose of this Ordinance. In the case of service of the summons through the bailiff or process service, a copy of the plaint shall be attached herewith and in all other cases the defendant shall be entitled to obtain a copy of the plaint from the office of the Banking Court without making a written application but against the acknowledgement. The Banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation within its territorial limits."
6. In view of the above-cited Section 9(5) of the Ordinance, it is clear that even if the service is duly effected in any one of the afore-said modes (viz. Through bailiff or process server of the Banking Court, by registered post acknowledgement due, by courier and by publication), the same shall be deemed to be valid service for the purposes of this Ordinance. Therefore, the stand taken by learned counsel for applicant that the service was not properly effected upon the defendants, is not tenable. The reliance may be placed on the case of Messrs Simpwa Polypropylene (Pvt.) Ltd.
And others v. Messrs National Bank of Pakistan as reported in 2002 SCMR 476 (Supreme Court of Pakistan) in which it was held as under:- "Learned Counsel for the petitioners submitted that since in this case, the petitioners were served through three modes in the following manner (1) through publication in the newspaper on 2.6.2000,
(2) allegedly through registered post acknowledgement due on 1.6.2000 and (3) through bailiff of the Court on 15.6.2000, therefore, for the purpose of computing the period of limitation, the service effected through Bailiff of the Court should be taken into consideration and not the other as the same is comparatively more valid having been made * in the prescribed mode by delivery of copy of the plaint in such suit whereas through other modes, the copies of the plaints were not delivered.
The argument has no force. It has been declared under Section 9(3) of the Ordinance that service in any of the modes shall be deemed lo be valid service for the purpose of the Ordinance therefore the petitioners could not argue that the latest service mode of the three modes should be taken into consideration for computing the period of limitation and not the other. The view finds support from the judgments reported as Messrs Qureshi Salt and Spices Industries, Khushat and another V.
Muslim Commercial Bank Limited, Karachi through President and 3 others (1999 SCMR 2353) and Messrs Ahmed Auto and another v. Allied Bank of Pakistan Limited (PLD 1990 SC 497)"
7. So far as the legal aspect of the case is concerned as to whether the present revision application is maintainable or not, the respectful reference be made to the case of Bolan Bank Limited v.
Capricorn Enterprise (Pvt.) Ltd., as reported in 1998 SCMR 1961 (Supreme Court of Pakistan) in which it was laid down as under:--- "The competency of this petition has also been challenged by Mr Mansoorul Afrin on another valid ground It has been pointed out that under Section 21. Of Act Xv or 1997 clause (5), no appeal, review or revision shall lie against any interlocutory order of the Banking Court other than an order passed under subsection (6) of Section 18. The order .Impugned in the present petition does not fall within the purview of an order passed under sub-section (6) of Section 18. Therefore, Section 21 clearly bars an appeal against an interlocutory order which does not dispose of. The whole case. The learned counsel has, therefore, questioned the maintainability of the petition before this Court as it has been filed against an interlocutory 4 order. Reference once again may be made to the said unreported judgment of this Court to which we have already referred. With reference to a similar contention raised by the learned counsel in the said case, it was observed: The stand taken by the learned' counsel is untenable for more than one reason. The Legislature has not provided any right of appeal against an interlocutory order of the Special Court. It is not understandable as to how the instant appeal is competent'
"Reference has also been made by Mr. Mansoorul Arfin to the following observations made in another judgment of this Court in Muhammad Ayub Butt V. Allied Bank Ltd. (PLD 1981 SC 359):- 'It seems to us that with a view 1:o securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision appeal as they wanted that only the final decisions of the Special Court should be open to appeal before the High Court. This is evident from sub-section (1) of Section 7, subsection (1) of Section 8 and Section 11 of the Ordinance. The cumulative - effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court. "
8. In the case of United Bank Limited V. Abdul Hamid & others as reported in 2001 CLC 460 Karachi, it was laid down that the order passed by Special Court was neither suffering from any illegality or impropriety nor was passed without jurisdiction since the appeal against the said order was not maintainable under Section 21(5) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and was accordingly dismissed.
9. On the same point of maintainability, the reference may be made to the case of Messrs Unicom Enterprises v. Banking Court No. 5, City Court Building, Karachi and 2 others, as reported in 2004 CLD 1452 (Karachi), in which it was held that provisions of Section 22, Financial Institutions (Recovery of Finances) Ordinance, 2001 having provided for challenging the judgment, decree, sentence and final order by the Banking Court within 30 days of judgment, decree, sentence and final order, to.
The High Court, conditional petition before the High Court was not maintainable.
10. In the light of above-cited provisions of law, it is clear that there is no provision of any revision application against any interlocutory order passed by learned Banking Court, as such, this revision application would not be maintainable.
11. Even on the factual aspect of the case as to whether there was any justification on the part of applicant/defendant No. 2 regarding the delay, it may be observed that the. Reason given by applicant in his application before the Trial Court was that he had no previous knowledge regarding the publication of summons in newspaper and such summons had not been received by him, and that he came to know regarding the suit on 23.10.2007 when he was standing outside the Trial Court for some work and suddenly heard the' call of peon of the Court. Prima facie the explanation given by the applicant would not provide any cogent reason for delay. It may seem to be a little strange that on the same date when the order was passed by learned Trial Court, holding the service good on defendants, the defendant No. 2 suddenly appeared, while stating that he was standing outside the Court with some work. It may be further significant to note that even after the appearance of applicant/defendant No. 2 before the Trial Court on 23.10.2007, he chose to wait for another 27, days before filing the application for leave to defend, alongwith application under Section 5 of the Limitation Act. Even this delay on the part of applicant in filing the said application, would seem to be without any plausible cause. Obviously the applicant was required to explain the delay of each arid every day and he had also 'to show that delay had been caused by the reason beyond his control. It may be noted that in his application under Section 5 of Limitation Act dated 19.11.2007, no reason whatsoever is. Shown for delay of 27 days in filing the said application, after he had appeared before the Trial Court on 23.11.2007. In this regard reliance may be placed on the case of Messrs Emirates Airlines v. Dr. Prof. Haroon Hameed and 3 others, as reported in PLD 2006 Karachi 126, in. Which it was laid down as under:- "We have taken into consideration arguments advanced by the learned Advocates for the respective parties and also gone through the case-law relied upon by them. By Section 5 of the Limitation Act legislature gives exemption to the party who for sufficient cause could not approach Court within the time fixed by law, and being an exception clause, the same has to construe liberally. The expression "sufficient cause" used in Section 5 of the Limitation Act should be given liberal construction so has to advance substantial justice. However, discretion given has to be exercised judicially and not arbitrarily. Section 3 of the Limitation Act provides that subject to Sections 4 to 25 every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed even if limitation has not been set up as defence even if limitation has not been set up as defence. It is by now settled that the party who is seeking indulgence of Court for condonation of delay, has to explain satisfactorily each and every day of delay and further that the delay has been caused by the reason beyond his control."
12. In view of the foregoing fact and circumstances, I do not find any illegality in the impugned order dated 25.2.2008 passed by learned Banking Court No. 1, Hyderabad. Accordingly, this revision application is dismissed in limine.