' SH. AZMAT SAEED, J.---This order shall dispose of C.Ms. Nos. 219, 419 and 420-B of 2006 purportedly filed under section 12 of the Financial Institution (Recovery of Finances) Ordinance, 2001 for setting aside of the ex parte decree dated 16-1-2006 and C.M. No,93-B of 2009. Initially C.M. No, 219-B of 2006 was filed but without clarifying as to on whose behalf the said petition was purported to have been filed. Subsequently, C.M. No, 419-B-2006 was filed stating that in fact the said application had been filed on behalf of judgment debtors 1 to 3 and 6. C.M. No, 420-B-2006 purports to be an amended petition under section 12 of the Ordinance on behalf of judgment-debtors 1 to 3 and 6.
Said petitions were dismissed by this Court by means of order dated 4-4-2007, which order was set aside with the consent of the parties by a learned Division Bench of this Court through judgment dated 7-2-2009, as a consequence whereof, said applications stood resurrected for being decided afresh in the light of the observations of the learned Division Bench ibid. Subsequently, the afore- said applicants filed CM 93-B-2009 seeking to amend the application under section 12 of the Ordinance.
2. The plaintiff/decree-holder bank instituted a suit for recovery, wherein, the present applicants were impleaded as defendants. Summonses were issued and proclamation published, eventually, the suit was decreed ex parte on 16-1-2006, where after said applications were filed on 19-6-2006 and 12-12-2006 respectively. It is the case of the applicants that they were never duly served through summonses issued by this Court upon filing of the suit, and thus they did not have any knowledge of the pendency thereof or the ex parte judgment and decree dated 16-1-2006. It is further being reiterated on behalf of the applicants that in fact the addresses of the applicants were incorrectly mentioned, hence, the proclamation cannot be deemed to be a due service in the eyes of law. And in fact the factum of the ex parte judgment and decree dated 16-1-2006 came to the knowledge of the applicants pursuant to information received when one of the judgment- debtors entered appearance before this Court and discovered that the decree had been passed, where after, the instant applications have been filed, and therefore, in the facts and circumstances of the case, the ex parte judgment and decree be set aside and the applicants be permit to file petitions for leave to defend the suit.
3. Learned counsel for the decree-holder bank controverted the contentions being urged on behalf of the applicants by contending that in fact the applicants were duly served through the summonses issued by this Court upon filing of the suit, but they deliberately failed to enter appearance nor filed petitions for leave to defend the suit. It was next asserted that after the ex parte decree was passed, during the course of the execution proceedings notices in terms of Order XXI, rule 66, C.P.C. Were issued which were also served upon the present applicants, and in fact pursuant thereto, one of the judgment debtors entered appearance. It is the case of the decree- holder bank that in fact service of notice under Order XXI, rule 66, C.P.C. Was effected on 18th and 19th of June, 2006, therefore, the applicants under reference are barred by limitation having been filed more than 21 days thereafter. It was also contended that the addresses as mentioned upon the notices issued and served upon the said applicants were exactly the same as given in the supporting affidavits to the instant application under section 12 of the Ordinance filed by the applicants themselves.
4. On 14-2-2009 applicants filed C.M. No,93-B of 2009 purportedly under Order VI, rule 17, C.P.O.
Seeking to raise further grounds to their application under section 12 of the Ordinance. It was asserted through the said application that addresses on which the applicants were served were incorrect, and alleged correct addresses were also mentioned. It was also asserted that the applicants had not been served notices under Order XXI, rule 66, C.P.C., and denied their signatures on the said notices. Said application has been replied to by the learned counsel for the decree- holder.
5. Heard. Record perused. Consequent upon filing of the suit, matter came up for hearing before this Court on 24-10-2005 when summonses were directed to be issued to the defendants including the present applicants in addition to citation through press for 12-12-2005 on which date Mr. Ijaz Ahmed Chadhar, Advocate appeared before this Court claiming to act on behalf of defendants, and the case was adjourned for 9-1-2006, on which date neither the said counsel appeared nor any PLA filed, whereafter suit was decreed ex parte on 16-1-2006. Subsequently, during the course of the execution, this Court vide order dated 18-4-2006 directed issuance of notice under Order XXI, rule 66, C.P.C. To the judgments-debtors including the present applicants. Later vide order dated 9- 5-2006 fresh notice was directed to be issued under Order XXI, rule 66, P.P.C. To judgment-debtors for 5-6-2006, on which date, defendant/judgment-debtor entered appearance before this Court and sought time to engage counsel, whereafter, the instant applications were filed on behalf of above mentioned defendants/judgment-debtors.
6. Perusal of this Court's record also reveals that notices under Order XXI, rule 66, C.P.C. Issued by this Court were served through this Court's bailiff in the following manner:-- ' Defendant No,1 company at its registered office i,e,, House No,18-E Flat No,2 Main Market Gulberg II Lahore on 18-5-2006 through Ch. Ghulam Hussain applicant/ defendant No,6.
' Bilal Hussain defendant No,2 at House No,E-3/2 Street No,5 Officers Colony Cavalry Ground Lahore, served on 19-5-2006 through Omar Hussain applicant-defendant No,3 who is his real brother and Director of defendant-Company, ' Omar Hussain applicant judgment debtor No,6 at house No,E-3/2 Street No,5 Officers Colony Cavalry Ground Lahore served on 19-5-2006, and ' Ch. Ghulam Hussain applicant/judgment-debtor No, 6 was served at House No, E-3/2 Street No, 5 Officers Colony Cavalry Ground Lahore served in person on 19-5-2006 through applicant/defendant No,3 Omar Hussain who is his real son.
7. The main thrust of the contentions of the learned counsel for the applicant was that the address of the applicants Nos.2, 3 and 6 given in the plaint were incorrect, therefore, they neither were nor could have been served through summonses issued upon the institution of the suit nor by notices issued under Order XXI, rule 66, C.P.C. Were served. And in this behalf it was also contended that in view of incorrect addresses, service through citation by way of publication was also non-est in the eye of law.
8. The linch pin of the case of the applicants is their alleged incorrect addresses. It is not the case of the applicants that the addresses of the applicant/defendant No,1 is incorrect. It is not denied that in the publication issued upon filing of the suit, address of defendant No,1 was anything other than the address of its registered office. Similarly, notices under Order XXI, rule 66, C.P.C. Were admittedly issued to applicant/ defendant No,1 at its registered office. Said notices under Order XXI, rule 66, C.P.C. Were purportedly served upon the applicant/ defendant No,6, who by way of a Resolution of the Board of Directors of the applicant/defendant No, l's company was authorized to act on its behalf. Copy of the said Resolution attested by the Company's Secretary is appended with the plaint.
9. Applicant/defendant No,3 has been served in person and applicants/defendants 2 and 6 have been served through defendant No,3 who is admittedly the brother and son of the said defendants.
Service has been affected on a residential address through defendant No,3 being a male family member of the family residing thereat.
10. Adverting now to the question of the incorrect address of defendants 2, 3 and 6. The first application under section 12 is C.M. No,219-B of 2006 is supported by affidavit of applicant/ defendant No,6. The Address in the said affidavit is identical to the address on which the service of applicants/defendants 2, 3 and 6 was effected. Perusal of the contents of C.M. No,219-B of 2006 also reveals that it is not denied on behalf of the applicants that their address given in the plaint on which service was effected was incorrect. Subsequently, C.M. No,419-B of 2006 was filed, which is supported by an affidavit of applicant/defendant No,2, and the address as given in the affidavit is identical to the address on which service was effected. C.M. No, 420-B of 2006 was also filed which is supported by affidavits of applicants/defendants Nos. 2 and 6, wherein, yet again the same address is given on which service was affected. C.M. No, 93-B of 2009 was subsequently filed purportedly under Order VI, rule 17, C.P.C. Seeking the amendment, but in pith and substance as mentioned in paragraph 6 thereof the purpose only was to clarify their stance by raising additional grounds. Though the said application is perhaps not maintainable as it does not specify as to - which of the CMs already filed i,e,, C.Ms. Nos.219-B of 2006, 419-B of 2006 or 420-B of 2006 is sought to be amended, yet in the interest of justice, the additional contentions are being considered for purposes of the adjudication of the lis at hand. No doubt, in the said application it is contended that the addresses of the applicants are different than those mentioned in the plaint, whereat, service was effected. And for the first time, denial of service of notice under Order XXI, rule 66, C.P.C.
Has been asserted. However, there is no prayer seeking the amendment of the affidavits filed in support of C.Ms. Nos.219-B, 419-B and 420-B of 2006 with regard to the addresses of the deponents.
C.M. No, 93-B is supported by a short affidavit of defendant No,3 showing a different address. There are no affidavits of defendants 2 and 6. A rejoinder was filed to the reply of CM 99-B which is supported by affidavit of applicant/ defendant No,2 which shows a different address. It appears that defendant No,2 has filed two separate affidavits with two separate addresses without any explanation. One of the two affidavits must necessarily be false. Said applicant has perhaps exposed himself to criminal liability in this behalf. It appears A that the assertion of the alleged incorrectness of the address on which service was effected is an afterthought, motivated not by truth but by change of an Advocate.
11. There is another interesting feature in this case which is the recurrence of co-incidents. Pursuant to the filing of the suit, summonses were issued for service upon inter alia the present applicants for 12-12-2005. Miraculously, on the said date Mr. Ijaz Ahmed Chadhar learned counsel entered appearance on behalf of the applicants who were allegedly not served. Subsequently, he disappeared and no PLA filed. Notices under Order XXI, rule 66, C.P.C. Were issued by this Court for service upon the applicants for 5-6-2006, yet again miraculously and coincidentally an applicant/defendant No,2 appears in person without the alleged notice being served. This multiplicity of coincidents denuded the contentions of the applicants of any credibility whatsoever.
12. Incidentally in none of the applications under reference i,e,, C.Ms. Nos. 219, 419 and 420-B of 2006 and 93-B 2009 any plausible explanation of the knowledge of the pendency of the proceedings or passing of ex parte decree is available. In C.M. No,219-B of 2006 it is merely stated that pursuant to information about pendency of some matter before this Court, one of the applicants appeared.
Absence of material particulars of time and source of information and the nature thereof exposes the lack of substance. The assertion is repeated in C.M. No,420-B of 2006 with equal ineffectiveness.
In C.M. No, 93-B of 2009 no clarification or additional ground in this behalf has been raised.
13. Examining the contentions of the learned counsel for the applicants, no matter how benignly leaves no room for doubt that said applicants were in fact served at least of the notice under Order XXI, rule 66, C.P.C., and the contentions of the applicants to the contrary are devoid of any truth.
Perusal of record reveals that applicant/defendant No,1 was duly served on 18-5-2006, while the remaining defendants were served on 19-5-2006, therefore, the said applicants had the knowledge of the proceedings of the ex parte decree on the date of service of notice under Order XXI, rule 66, C.P.C. And the first application under section 12 of the Ordinance viz C.M. No,219 B of 2006 was filed on 19-6-2006 well beyond the period of 21 of the date of knowledge prescribed by said provision.
Consequently, said applications under section 12 of the Ordinance i,e,, C.Ms. Nos. 219, 419 and 420-B of 2006 are not only without any merit but also barred by limitation are hereby dismissed.
14. Main case be listed for any date during the second week of January, 2010.