C.M. Nos,2258-C and 2260-C of 2018 SHAMS MEHMOOD MIRZA, J.---This application (C.M. No,2258-C of 2018) is filed by the defendants for setting aside the judgment and decree dated 07.09.2018 passed by this Court. It is accompanied by C.M. No,2260-C of 2018 seeking condonation of delay .
2. It is alleged that the defendants in pursuance of summons received by them instituted their application for leave to defend (P. L.A. No,3 of 2018) in the office on 03.09.2018. It is the case of the defendants that this Court on 07.09.2018 passed judgment and decree by holding that the application for leave to defend had not been filed by the defendants.
3. Perusal of the order sheet shows that his Court on the first date of hearing i,e, 05.12.2017 passed orders for service of the defendants, which order was modified on 18.12.2017 by including the publication of summons to the defendants. Pursuant to the said order , service was effected on the defendants through all the prescribed modes.
The case on the prescribed date i,e, 31.01.2018 could not be taken up on account of strike being observed by the bar. It may , however , relevantly be pointed out that the defendants did not file their application for leave to defend.
4. The plaintif f bank filed C.M. No,1355-C of 2018 seeking fixation of the suit, which was allowed on 24.05.2018.
While fixing the date on 24.05.2018 this Court, however , once again passed order for summoning of the defendants through all the prescribed modes. According to the record the defendants were served through courier on 29.05.2018 and through publication on 31.05.2018 and 01.06.2018. The defendants, however , filed their application for leave to defend on 03.09.2018 after the summer vacations.
5. It is the version of the defendants that the office did not receive the application for leave to defend on account of summer vacations and as such the same was filed on the opening date i,e, 03.09.2018.
6. The submissions made by the learned counsel for the defendants are not tenable. In the first place, the defendants were duly served through summons ordered on 05.12.2017 and 18.12. 2017 by this Court. Newspapers in which the summons were published on 20.12.2017 and 21.12.2017 are' available on the record. Under section 9 of the Ordinance, service through any of the modes is deemed to be valid service. Reference in this regard is made to the judgment reported as Messrs Ahmed Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 and Messrs Qureshi Salt and Spices Industri es Khushab and another v. Muslim Commercial Bank Limited 1999 SCMR 2253 . The defendants in their application have not mentioned any reason for not appearing in the court and filing their application for leave to defend pursuant to the summons issued by this Court on 05.12.2017 and 18.12.2017.
7. This Court erroneously passed the order on 24.05.2018 for repeating service of summons on the defendants as it overlooked the fact that service had already been affected on them. Be that as it may, even if the second service is taken into account, the application for leave to defend was still time-barred. The service through courier was affected on 29.05.2018 and summons were published in newspaper on 31.05.201 8 and 01.06.2018. According to the notification of summer vacations issued by the office, the vacation period lasted from 02.07.2018 to 01.09.2018.
The application for leave to defend filed on 03.09.2018 was barred by limitation.
8. The judgment and decree by this Cour t on 07.09.2018 was passed on merits after going through the record and as such the only remedy available to the defendant was to file an appeal against the said decree.
9. In the result, this application being devoid of any merit is dismissed. C.M. No,2260-C of 2018 is also dismissed.