' AMIN-UD-DIN KHAN, J. --- This appeal is against order dated 22.08.2014 passed by Judge- Banking Court-II Gujranwala ("Banking Court"), dismissing application under Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("F.1.0. 2001").
2. Suit for recovery of outstanding lease rentals along with costs was filed by respondent No, 1 (Financial Institution) against appellant and respondent No, 2 on 08.01.2010. Summons were issued through all modes under Section 9(5) of F.1.0., 2001 but none appeared in response. On 08.12.2010, Banking Court proceeded to pass ex parte judgment and decree, after discussing the contents of plaint along with supporting documents.
' On 05.05.2012, an application under Section 12 of F.1.0., 2001 was filed by the appellant, after delay of 17 months and 27 days, contending that notice were not served and knowledge was gained on service of notice under Order XXI, Rule 37, CPC. The Banking Court, being dissatisfied, dismissed the application through the order assailed in this appeal.
3. Learned Counsel for the appellant submits that impugned order was passed in absence of counsel for appellant, therefore, is bad in law. Explains that clerk of the counsel informed Banking Court about his engagement before another Court but it proceeded to pass the impugned order.
On merits, he submits that a report of bailiff regarding service through affixation is false. Further argues that service of summons through publication was unlawful and ineffective in absence of service through other modes. He concludes that the impugned judgment and decree came to knowledge of appellant when notices under Order XXI, Rule 37, CPC were served for 05.05.2012.
4. Heard learned counsel for appellant at preliminary stage, record appended with the appeal perused.
5. Though service of the summons is denied but issuance of summons through registered post acknowledgement due, affixation, courier and publication is not denied. Importantly; date of knowledge is not specified in the application, however it is vaguely asserted that knowledge was obtained on service of notice under Order XXI, Rule 37, CPC, where after he went to the Banking Court on 03.05.2012 for getting information about the case.
' Perusal of the order sheet (attached with the appeal) shows that notice under Order XXI, Rule 37, CPC was first issued on 12.08.2011, which remained un served, therefore, was repeated vide order dated 13.04.2012 to be served through affixation for 05.05.2012. An apparent/ unexplained contradiction is noticed that earlier service of summons through affixation is denied, however, service through affixation (on same address) of notice under Order XXI, Rule 37, CPC is claimed as source of knowledge for the purpose. Of limitation prescribed in Section 12. Change of address is not pleaded anywhere, therefore, it is not believable that service of summons through all modes on the same address was not in knowledge of the appellant. Argument of learned counsel that clerk informed Banking Court about engagement of counsel is not supported from the order sheet or impugned order. Presumption of truth is attached to the judicial proceedings, which cannot be disbelieved on mere assertions without any evidence. Even otherwise, the application was decided on merits on all grounds, learned counsel has not argued that any ground raised in the application was not attended. Neither denial of service is proved nor sufficient cause for prevention from filing of application under Section 10, within limitation, is shown.
6. Notwithstanding that argument of learned counsel regarding ineffective service through publication is not convincing under the facts discussed above, yet we are inclined to examine legal aspect of the argument. Subsection (5) of Section 9 of the F.1.0., 2001, being relevant, is reproduced:- "(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 as may, from time to time, be prescribed by rules, shall be served on the defendant through the bailiff or process-server of the Banking Court, by 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 aforesaid modes shall be deemed to be valid service for purposes of this Ordinance. In the case of service of the summons through the bailiff or process-server, a copy of the plaint shall be attached therewith 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 due acknowledgement. The Banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation within its territorial limits."
[emphasis supplied)
' Needless to say that the provisions reproduced above provide special procedure for service of summons, which shall prevail in case of any conflict with general law as contained in Order V of CPC. This principle is based on maxim "generalia specially bus non derogant" (general words do not derogate from special). The intent behind similar special procedure, as prescribed by Banking Companies (Recovery of Loans) Rules, 1980, was enshrined by the apex Court in Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited (PLD 1990 S.C. 497), relevant excerpt from the judgment is reproduced for precise understanding:--- "9. We are inclined to hold that the view taken in the last referred case of Karachi is in consonance with the spirit of the Ordinance and the Rules framed thereunder. It is a matter of common knowledge that defaulter borrowers in suits brought against them particularly by the financial institutions used to delay the disposal of the suits by avoiding the service of the summons. In order to expedite the disposal of the suits to be brought by the Banking Companies the Ordinance was promulgated, which contains special provisions and which inter alia provide that a suit brought by a Banking Company for the recovery of loan is to be tried in summary manner under Order XXXVII.
Section 15 of the Ordinance empowers the Federal Government by a notification in the official Gazette to make rules for carrying out the purposes of the Ordinance. In pursuance whereof the rules have been framed. The underlined object of Rule 8 is to avoid the delay in the service of the summons and, therefore, it has been provided that the summons are to be issued simultaneously in three different modes referred to hare in above, which is the requirement of the above rule.
Obviously for the reason that if the summons 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 summons 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 the case of M/s. Allied Bank of Pakistan Limited v.
M/s. Tahir Traders and 8 others reported in PLD 1986 Kar. 369 a learned Single Judge of the Sindh High Court had taken the view that mere publication of summons under Rule 8 would not be a proper service unless it was proved that defendant was avoiding the service of summons issued through bailiff and registered post or his whereabouts were not known. A contrary view was taken in a subsequent case referred to hereinabove namely in the case of M/s. Union Bank of Middle East Limited v. M/s. Zubna Limited and 3 others (PLD 1987 Kar. 206), relevant portion of which has been quoted here in above. The framers of the Rules by amending Rule 8 by SRO No, 71(1)/88, dated 31.1.1988 have resolved the above controversy. It may be advantageous to reproduce the original rule and the addition made by the above S.R.O. Dated 31.1.1988 which read as follows:-- (original Rule 8 as framed)
"8. Mode of service of summons and notices.-The Reader shall, on receipt of a plaint, order immediate issue of summons and notices to the defendant simultaneously through the Bailiff of the Court, by registered post acknowledgement due and by publication, "and service in any of the aforesaid modes shall be deemed proper and valid service for the purposes of the Ordinance."
(Underlining is ours and is the addition made by SRO No, 71(1)/88, dated, 31.1.1988)
10. However, we may observe that it appears that neither the Courts below nor the learned A.S.C.
Appearing for the petitioners and the respondent caveator have taken notice of the above amendment as it has not been referred to in the judgments nor it was referred before us during the arguments. However, we may point out that there was no need to amend the above Rule 8 as the correct legal position was that the service was to be held to be good service if it was effected by any one or more modes of service provided for in the above-quoted Rule 8. If we were to take a contrary view, it would be in conflict with the object of the Ordinance and the Rules framed thereunder, as it would make the service more difficult. It would instead of suppressing the mischief which prompted the framing of above Rule 8, would encourage the mischief as a defendant may successfully avoid service by one of the above three modes of service for considerable period by manoeuvring." [emphasis supplied] If the Rule 8, under discussion in the quoted judgment, is read in juxtaposition with the Sub-section
(5) of Section 9, not much difference would be found in language (marked in Italic) and the intent behind. Hon'ble Court has validated simultaneous issuance of summons through different modes and its service/effectiveness by any one of the modes. Any other construction of sub-section (5) of Section 9 would be in conflict with the object of F.I.O., 2001. Defendant may successfully avoid service and delay the early disposal by maneuvering, if the construction suggested by learned counsel is accepted.
7. A defendant, if proceeded ex parte after the issuance of summons, is still given a chance to satisfy the Court, under Section 12 of F.I.O., 2001, that "he was prevented by sufficient cause from making an application under Section 10, or that the summons was not duly served". However, burden to prove that summons were not duly served by any of the modes is on the defendant. If the Court is successfully satisfied; it is bound to set aside the decree.
' A situation came under consideration by the apex Court in Mubarak All v. First Prudential Modarba (2011 SCM R 1496). Defendant contended, in an application under Section 12, that he had moved to his village, where Newspapers (in which summons were published) were not circulated. Report of the bailiff had confirmed his contention that at the given address some other person was residing.
The assertion was stated on oath but was not controverted by the other side. In view of these circumstances, the Hon'ble Court laid following law:--- "10. Mere fact that the petitioner had given address of Karachi in the documents submitted to the Bank and (ii) that summons was sent through registered post AD (iii) that publication was made in two newspapers of Urdu and English languages and (iv) change of address was not notified to the respondents would not be sufficient in view of the circumstances of the present case to hold that the petitioner was duly served with the summons of the Trial Court. Admittedly the bailiff in the endorsement dated 22.3.2004 has specifically stated that he had gone to the address of Karachi but no person of the name of respondent was residing in the said apartment but one Dr. Ahmed was residing in the said apartment. It may also be observed that neither the Presiding Officer of the Banking Court nor the High Court had cared to go through the endorsement of the bailiff who himself had gone to the place of address of Karachi and had stated on oath about the non-service of summons upon the petitioner. The fact that these newspapers Jhang and Dawn are not delivered at the village Haji Dilbar Khan, Taluka and District Mirpurkhas was stated on oath by the petitioner which was not controverted by the respondent so as to say that the petitioner was duly served with the summons. Question in this case would be whether the service on the basis of publication should be held to be satisfactory for the purpose of holding the petitioner to have been duly served. The fact that in case the said newspapers are not delivered or received at time said village, place of residence of the petitioner, it cannot ipso dixit be presumed that the petitioner is duly served with the summons. There is nothing on the record that any acknowledgement due of the registered post was received by the Trial Court or that any person on behalf of newspapers was examined to state that the said newspapers do reach or are being delivered at the said village of Haji Dilbar Khan Mehar, Taluka and District Mirpurkhas. It is only when the summons are duly served and service is held to be satisfactory by the Court, further proceedings in the suit could be taken, but in the instant case in our view the service upon the petitioner was not at all duly effected, therefore all the proceedings initiated or taken thereafter cannot have sanction of law hence are liable to be struck down/set aside. We are convinced from the record that the petitioner was not duly served with the summons so as to proceed ex parte against him and pass decree for such a huge amount against him. This be noted that this Court has time and again held that parties should be given due opportunity to defend the /is and put up their case before the Court and decree be passed on merits. In case the respondent's claim is genuine and is based on valid documents they would be ultimately entitled to decree even if the petitioner is given chance to apply for leave to defend the suit and to take further steps in the light of decision so made by the Trial Court for the final disposal of the suit at the level of the Trial Court."
' After examining both the judgments, supra, it can safely be concluded that intent of the legislature behind F.1.0., 2001, generally, is to expedite disposal of suits relating to Finance. Sub-section (5) of Section 9, in particular, is enacted to minimize the possibility of delay on the part of defaulter borrower by avoiding service of summons. Therefore, simultaneous service of summons through all modes is made mandatory. Service of summons through any one of the modes would be effective and sufficient. Any contrary view shall defeat the object of Legislature and the intended expeditious service of summons would become more complex, giving room to the defendant to manoeuvre the process in his favour.
' Nevertheless, principle of 'due opportunity to defend the lis' cannot be sacrificed, as reemphasized by the apex Court in Mubarak Ali's case supra. Particularly when "Fair Trial" has become a fundamental right after insertion of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973. Banking Court should not 'ipse dixit' presume that defendant is duly served. It is to be ensured, through speaking order after examining the reports of Bailiff, that defendant is avoiding service or is untraceable despite due and reasonable diligence.
' Learned counsel has not argued that appellant had changed address or was residing in an area where the newspapers in question are not circulated, therefore, the judgment in Mubarak Ali's case shall not come to rescue the appellant.
9. In our view, the appellant failed to satisfy through sufficient cause that he was prevented from making an application under Section 10 of F.1.0., 2001 and that the summons were not served.
Rather circumstances of this case suggest that the matter was being delayed deliberately.
' This appeal, therefore, is dismissed in limine.