1. ' The plaintiff had filed a suit for recovery of Rs.10,23,450 against sainji Restaurant Hotel through its partner respondents Nos. 1 and 2. This suit was filed under the Banking Companies (Recovery of Loans) Ordinance, 1979 hereinafter referred as the 'Ordinance'. The office issued summons to the defendants through the Bailiff and by publication. The notice issued through Bailiff was sent by registered post A/D, to the District Judge, Hyderabad, and the Bailiff reported that the summons was offered to the Manager of Sainji Restaurant, who did not accept and informed that the respondent No. 1 has been arrested and is in Jail, while the whereabouts of the defendant No.2 were not known. Summons was also published in a newspaper. The suit was then put for final hearing on 29-5-1984 when the defendants did not appear and on 30th May, 1984 the suit was decreed ex parte against the defendants Nos. 1 and 2.
2. ' The defendants Nos. 1 and 2 have filed an application under Order IX, rule 13, C.P.C. on 1-10-1984 stating that they were not served with the summons. The defendant No 1 further alleged that he was in Jail and no service was effected on him. They came to know about the decree from the plaintiff's letter, dated 26-9-1984. The plaintiff has filed counter-affidavit denying these allegations.
3. ' Mr. S. Masood Ali the learned counsel for the plaintiff has invited my attention to the affidavit filed on behalf of the plaintiff stating that proper search was made about the defendants, particularly the defendant No. 1, but the Authorities did not disclose in which Jail he was detained. In these circumstances according to the learned counsel for the plaintiff service effected through Bailiff and by publication is a sufficient service. The suit is under the Banking Companies (Recovery of Loans)
4. Ordinance) 1979 which provides a special procedure for the Court and the suit is to be tried in a summary manner as provided by Order XXXVII, C.P.C. Rules have also been framed and under rule 8 the modes of service of summons and notices have been prescribed which reads as follows:-- 'Reader shall on receipt of the plaint, order immediate issue of summons and notices to the defendant simultaneously through the Bailiff of the Court, by registered post A/D and by application.'
5. ' From this rule it is clear that the mode of service provided by C.P.C. is not applicable. It provides special modes for service on the defendant by simultaneously issuing summons (i) through Bailiff,
(ii) by publication and (iii) by Registered Post A/D. It is, therefore, necessary that before ex parte proceedings are drawn against the defendants all the three modes of effecting service of summons, should be exhausted. The omission to issue summons through any one of the modes provided by rule 8, will render the service of summons defective. It may however be clarified that if in pursuance of the summons issued in any one of the prescribed modes the defendant appears in Court, then the omission to follow rule 8 will not entitle the defendant to claim fresh service. As under the Ordinance the plaintiffs enforce their claim through a summary procedure it should be ensured that the defendants are properly served in the manner provided by law. In the present case the summons were issued through the Bailiff and were published in the newspaper but they were not issued by registered post A/D.
6. ' Mr. S. Masood Ali, the learned counsel has contended that the defendants were aware of the proceedings and mere statement that they came to know about it through letter, dated 26-9-1984 is not sufficient to compute the period of limitation of 30 days from that date. In the counter- affidavit it has been denied that the defendants had gained knowledge by the alleged letter, dated 26-9-1984, but there is no specific denial of the fact that the plaintiff had sent any letter, dated 26- 9-1984.
7. ' Mr. S. Masood Ali further contended that the application has been made under Order IX, rule 13, C.P.C. which is not maintainable. It is correct that proper application should be under Order XXXVII, rule 4, C.P.C. This is merely a technical objection, and merely because a wrong provision of law has been quoted, application cannot be dismissed. The learned counsel for the plaintiff also pointed out that summons was served through the Bailiff as the Manager of Sainji Restaurant had refused to accept it. The summons on the defendants Nos. 1 and 2 could either be served personally or through any person authorised on their behalf to accept the service. There is nothing on record to show that the Manager was authorised to accept the summons on behalf of the defendants Nos. 1 and 2 and therefore, even if he refused to accept the summons, it cannot be treated as a proper service on defendants No4 . 1 and 2. From the report of the Bailiff, it is clear that the defendant No. 1 was detained in prison and therefore the summons should have been sent either through the Superintendent Jail, and if it was not known that in which Jail the defendant No.1 was detained then summons should have been sent through the Home Secretary. In the result I am of the opinion that there was no proper and due service of summons on the defendants Nos. 1 and 2 and therefore, judgment and decree passed on 30-5-1984 is set aside on the condition that the defendants Nos., 1 and 2 shall furnish security to the extent of the decretal amount within one month to the satisfaction of the Nazir of this Court. The defendants will file application for leave to defend within 10 days from today, and the same will be put up for consideration after the security has been furnished. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.