1. The first of these applications by defendants Nos.1 and 2 under Order XXXVII, Rule 4 read with Order IX Rule 13 C.P.C. Prays for the setting aside of the decree passed by this Court on 4-6-1985, whilst the second seeks leave to appear and defend this suit.
2. The learned counsel for the applicants defendants when confronted with the position that the decree has not been passed ex parte but the suit was decreed on account of non-filing of an application for leave to appear and defend the suit conceded that the provisions of Order IX, Rule 13 C.P.C. Are not applicable and that the first application, may be treated as under Order XXXVII, Rule 4 C P C only for recalling the judgment and decree.
3. These applications have been resisted by the Decree Holder. In the reply apart from controverting the facts as set up in the applications preliminary objections have also been raised; the most important amongst them being that the facts in the application are discrepant as well as contradictory and belied by the proceedings taken in this case. It has also been asserted that the applicants had the knowledge of the pendency of the suit all along. The allegations in ground (b) of para. 5 of the application have been categorically dubbed as mere concoctions and of no substance and that the averments of the application as a whole are afterthought.
4. The learned counsel for the applicants raised the following contentions:- First, that no proper service had been effected on the appellants --defendants as required by law; Secondly, that the summonses having been published in the daily Jang of Lahore dated 17-4-1985 when applicant No.2 was at Karachi having gone from Lahore on 2-4-1985 and remained there till 4-6-1985 he could not come to know of this publication and thus even the substituted service was not proper; Thirdly, that the case was fixed for 4-6-1985 on which date defendant tro.2 was at Karachi where he received a message from one Mian Shah Din about the fixation of the case and on the same date applicant No.2 immediately directed his counsel to appear and seek adjournment; and Lastly, that immediately on coming to know about the fixation of the suit he (applicant No.2) contacted his counsel at 11 A.M. On 5-6-1985 and 'instructed him to make the application.
5. It was urged on the basis of the above contentions that sufficient cause has been shown for recalling the judgment and decree passed on 4-6-1985.
6. On the contrary, the learned counsel for the decree holder submitted that all the averments in the application are based on concoctions and that it has been incorrectly stated in para.(b) of the application that there was a report about the residence of applicant No.2 situate at No. 6, Fateh Sher Road, New Mozang, Lahore being closed 'inasmuch as there is neither any such report available on record nor in fact any notice or summons was sent to that address ever.
7. He also argued that the story of applicant No.2 being in Karachi and having no knowledge of the pendency of the suit is also a concoction and no proof has been annexed with the application in this regard.
8. I am of the view that the contentions raised on behalf of the applicants have no force. The modes of effecting service of summonses on the defendants in a suit instituted under the Banking Companies (Recovery of Loans) Ordinance, 1979 are provided by Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980. The said rule reads as under:- "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.
9. The language of Rule 8 ibid envisages that all the three modes of service are to be resorted to simultaneously and naturally, therefore, if service by one of these modes has been effected it shall be proper service in the eyes of law."
10. It is the established position on record that the compliance of the above rule had been strictly made in the case in hand. On both the summonses issued in the ordinary course and by registered post the report is that the shop is lying locked for the last some time. It has been admitted before me today that the defendants had not intimated the plaintiff of change of any address and of their having abandoned the shop long time ago. The plaintiff was, therefore, justified in giving the shop's address of the defendants which was the last known address and obviously the summonses could be sent to the same address only.
11. Again the summonses have also been published in Form 4 of Appendix B of the Code of Civil Procedure by issue thereof in the daily 'Jang' of Lahore dated 17-4-1985. The defendants being admittedly residents of Lahore where they were carrying on business the publication in a daily newspaper of Lahore was apparently the only called for requirement.
12. Whilst on the subject it may also be observed that the notion that service through proclamation has to be equated with substituted service within the meaning of Order V of the Code of Civil Procedure is on the fate of it fallacious having regard to the express language of rule 8 referred to above. Moreover, when a special mode of service is provided it will obviously exclude the genera law on the subject. There is thus no force in the first two contentions raised on behalf of the applicants-defendants.
13. The other contentions raised on behalf of the appellants are also not tenable. It has been correctly pointed out that no proof of applicant No.2 having gone to Karachi on 2-4-1985 and having remained there till 4-6-1985 has been furnished except the affidavit filed alongwith the application, contents of which have been controverted by the decree-holder through an affidavit of an Officer of the decree-holder bank. There is-thus word of mouth of one party as against that of the other, which would be of no assistance in resolving the controversy in favour of applicants-defendants especially when they have produced no other material in support of their assertions. It may further be observed that the applicants have not only furnished no proof of applicant No.2 having gone to Karachi on 2-4-1985 and remained there till 4-6-1985 but no affidavit of Shah Din the alleged informant of the date fixed has even been filed. There is also no detail given in the application as to how Shah Din attained knowledge of the date of hearing of the suit just on 4-6-1985.
14. Again in para (b) of the application it has been mentioned that report about house No.6. Fateh Sher Road, New Mozang, Lahore, being closed is also not correct as in the house the family of applicant No.2 was living all along and it remained open. Despite opportunity having been given to the learned counsel for the applicants he has not been able to show me any report in the above regard even after examining the record now. In fact such a report could not be there at all as no summonses were issued to the residential address of applicant No.2, the same being not known to any one.
15. Apart altogether from the above discussion which establishes that no special circumstance has been made out by the applicants which may warrant the recall of the decree, another aspect of the matter is that it is the admitted position that the applicants had attained knowledge of the passing of the decree on 4-6--1985. It has also been conceded by the learned counsel for the applicants today that applicant No.2 had personally contacted him on 5-6-1985 at II A.M. And directed that the application be filed immediately. Notwithstanding the above position the application which is dated 11-6-1985 and the court-fee affixed thereon also bears the same date was filed on 13-6-1985. There is no explanation whatsoever given in the application or even today as to how all these days from 5-6-1985 to 13-6-1985 had been spent. Not only that even the delay of the period from 11-6-1985 to 13-6-1985 has not been explained for which there is apparently no reason in that the said application had been fully prepared and typed out on 11-6-1985 and even the Court Fee had been purchased on that date. This establishes the gross neglect of the applicants in diligently making the application under adjudication. There is no dearth of authority on the well established principle that if proceedings are taken subsequent to the expiry of period of limitation provided therefore, each day's delay in making an application has to be brought out and succinctly explained before any relief could be sought for. The period for filing of an application for leave to appear and defend the suit having already expired in the case in hand, the above principle on the very face of the application under discussion has been ignored and flouted.
16. C.M. No. 78-B of 1985 With the dismissal of applications C.M. No.76-B of 1985 and P.L.A. No.19-B of 1985, this application which prays for an interim relief till final disposal of the first of the above applications has obviously become infructuous and is dismissed accordingly.