' This judgment will dispose of CM No,7-B/87 and CM, No,128-B/86, the first filed by the defendants with a prayer for setting aside the ex parte preliminary decree dated 4-2-1986 whilst the second by the plaintiff for passing of a final decree.
2. The facts necessary for the purposes of the present proceedings may be briefly stated as under: ' The plaintiff National Bank of Pakistan on 2-11-1985 instituted a suit for the recovery of Rs,11,11,316.36 against Home Aids Corporation and another the defendants under the Banking Companies (Recovery of Loans) Ordinance, 1979. By order dated 10-12-1985 summonses were directed to be issued in Form 4 of Appendix B of the Code of Civil Procedure in the ordinary course, by registered post acknowledgment due and by publication thereof in the Daily Nawa-i-Waqt. These summonses were issued at the following two addresses: (1) 65-Shahrah-e-Quaid-e-Azam, Lahore the business address of the defendants; and (2) 179-Shadman Colony, Lahore the residential address of defendant No,2 who is the proprietor of defendant No,1. It may be observed that these two addresses are admittedly the addresses given by the defendants themselves to the plaintiff and no change of address was ever intimated by them to the plaintiff. On the summons issued in the ordinary course at the business address of the defendant the report was that Nazir Ahmad Tariq defendant No,2 is away from Lahore and the informant had no knowledge as to the date of his return. On the summons in the ordinary course issued at the residential address cf defendant No,2 the report was that: {{URDU TEXT}} ' due it shall have to be presumed to have been delivered. The summonses published in the Daily Nawa-i-Waqt were duly published on 27-12-1985.
3. On 4-2-1986 the date fixed in the matter when the case was called out neither any application for leave to appear and defend the suit was filed by any of the defendants nor anyone of them appeared. Consequently by judgment dated 4-2-1986 a preliminary mortgage decree for the recovery of Rs,11,11,316.36 was passed in favour of the plaintiff and against the defendants with cost and interest at the rate of 14% per annum from the date of institution of the suit till realization of the decretal amount. The defendants were allowed three months time to pay the decretal amount failing which the plaintiff could apply for the passing of the final decree.
4. On the failure of the defendants to pay the decretal amount within the time allowed the plaintiff filed an application under Order XXXIV, Rule 5, C.P.0 (CM No,128-B/86) for passing of a final decree.
This application was filed on 23-9-1986. By order dated 15-11-1986 notices were directed to be issued to the defendants for 14-1-1987 in the aforementioned application again in the ordinary course, by registered post acknowledgment due and by publication thereof in the Daily Nawa-i- Waqt of Lahore. The position of service on the aforementioned notices is as under:- {{TABLE}} COURSE POSITION OF SERVICE POSITION OF SERVICE AT AT BUSINESS ADDRESS RESIDENTIAL ADDRESS Ordinary On 4-12-1986 {{URDU TEXT}} On 4-12-1986 {{URDU TEXT}} Registered Envelope not received Post back. Deemed to have been served. Publication Published in the Published in the Daily Nawa- i-Waqt Nawa-i-Waqt on 19-12-1986 on 19-12-1986
5. The defendants on 13-1-1987 filed an application (CM No,7-B/87) under Order IX, Rule 13 and Section 151, C.P.C. For setting aside the ex parte decree. The defendants have also submitted a reply to the application of the plaintiff for passing of the final decree. In this reply it has been asserted that since the plaintiff had not asked the defendants to make payment of the decretal amount the question of payment thereof under the preliminary decree did not arise and that an application for setting aside the ex parte decree has been filed by the defendants. In the reply it has been prayed that till the final disposal of the application of defendants for setting aside the ex parte decree the final decree may not be passed in the suit.
6. The plaintiff-Bank has resisted the application of the defendants for setting aside the ex parte decree. Apart from controverting the assertions made in this application the plaintiff has raised preliminary objections inter alia on the grounds that the decree having been passed under Order XXXVII, C.P.C. The same cannot be set aside on an application filed under Order IX, Rule 13 ibid and, therefore, the said application is not maintainable; that the ex parte preliminary decree was passed on 4-2-1986 whereas the application for setting aside the same has been filed on 12-1-1987 and thus is barred by limitation; and that no special circumstances which are required to be shown under Order XXXVII, Rule 4, C.P.C. For having an ex parte decree passed under the said Order recalled have been shown by the defendants.
7. The learned counsel for the defendants in support of CM No,7-B/87 has raised the following contentions:
(1) That no service had been effected on the defendants before the passing of the preliminary decree and that the publication of summonses could only be resorted to after normal service had been shown to have been refused or avoided. In support of the above contention reliance was placed by the learned counsel for the defendants on M/s. Baltistan Boutique through its Proprietor v. District and Sessions Judge, Karachi and 2 others reported as 1987 CLC 428; and Habib Bank Ltd. v. Cargo Despatch Co. Ltd. And 4 others reported as 1987 CLC 1002;
(2) That this Court had no jurisdiction to entertain and try the suit in that if the amount of penal interest amounting to Rs,2,03,977.34 is taken out of the amount claimed in the suit the jurisdictional value of the suit falls below the pecuniary jurisdiction of this Court and, therefore, preliminary decree is liable to be set aside.
8. The learned counsel for the plaintiff-Bank in reply submitted: ' First, that apart from the service through publication in the Daily Nawa-i-Waqt dated 27-12-1985 the summonses were served by registered post acknowledgment due alongwith the copy of the plaint at the business address of the defendants since the envelope containing the same had not been received back and, therefore, it should be deemed to have been duly delivered in the normal course of mail.
' The learned counsel additionally submitted that the summonses sent at the business address in the ordinary course shall also be deemed to have been served as the employee of the defendants at the said address had come to know about the proceedings and not taken delivery of the summonses on the ground that defendant No,2 had gone away from Lahore. In the same context the learned counsel submitted that the summonses sent at the residential address of defendant No,2 were obviously avoided to be taken delivery of in that although the summons sent to the said address was returned with the remark the notice sent in CM No,128-B/86, i.e, the application for passing of the final decree at the same residential address had been received by the defendant personally on 4-12-1986 as is borne out from the service on the said notice; ' Secondly, that the service of summonses otherwise also had been duly effected on the defendants assuming the service to have been made only through publication thereof in the newspaper. Reliance in this regard was placed on Allied Bank of Pakistan Ltd. v. Ahmad Autos reported as PLJ 1986 Lah.228 and M/s. Union Bank of the Middle East Ltd. v. M/s. Zubna Ltd. And 3 others reported as PLD 1987 Kar.206; ' Thirdly, that by amendment in Rule 8 of Banking Companies (Recovery of Loans) Rules, 1980 it has been further clarified that service through any of the three modes provided for in the said rule shall be deemed to be a good service; ' Fourthly, that application under Order IX, Rule 13 is not maintainable for obtaining the recall of the decree passed under Order XXXVII and that the said decree could only be set aside if an application had been made under Order XXXVII, Rule 4, C.P.C. Reliance in support of the above contention was placed on Allied Bank of Pakistan Ltd. v. V.C. Khilnani and 2 others reported as PLD 1984 Kar.127; and ' Lastly, that even the application under Order IX, Rule 13 filed by the defendants is liable to be dismissed on the short ground of having been filed beyond the period of limitation and no explanation whatsoever has been offered for the belated filing thereof.
9. In reply the learned counsel for the defendants only submitted that the application was filed on 13-1-1987 because the defendants thought that it could be filed on the date for which the notice had been received for appearance in Court in the application of the plaintiff for passing of the final decree.
10. Having given careful consideration to the controversy involved I am of the view that the contentions raised on behalf of the defendants have no force. It has been correctly pointed out by the learned counsel for the plaintiff that an application under Order IX, Rule 13, C.P. C. Is not competent for having a decree passed under Order XXXVII set aside. The ratio of the case Allied Bank of Pakistan Ltd. v. V.C. Khilnani is that for having a decree passed under Order XXXVII set aside the defendant has to show special circumstances which would mean circumstances much more than the sufficient cause or good cause required to be shown for having such orders/decrees set aside under Order IX, C.P.C. I am in respectful agreement with the ratio of the above case. I may also add that when the Legislature uses words in a provision of law different from those used for similar situations envisaged by other provisions of the same statute the intention of the Legislature is clear that the deviation is intended to lay emphasis on compliance in accord with the words used. Keeping in view the above rule of interpretation it becomes manifest that the Legislature intended to have extraordinary circumstances shown for getting an ex parte decree passed under Order XXXVII set aside as compared with the circumstances which may be shown for having an ordinary ex parte decree recalled. It would thus mean that the defendants in a case under Order XXXVII against whom an ex parte decree has been passed shall have to show rather exceptional and uncommon circumstances which prevented the defendants from appearing in the case against them or from filing an application for leave to appear and defend the suit. No such special circumstances have been canvassed today at the Bar on behalf of the defendants nor any such circumstances can be culled out from the application of the defendants under consideration.
11. Not only that the conduct of the defendants also tends to show that they had knowledge of the proceedings and of the summonses issued to them about the suit against them through the ordinary course, by registered post acknowledgment due and also by publication thereof in the newspaper. The summonses originally sent to the defendants at the official address by registered post acknowledgment due shall be deemed to have been received by them as the envelope containing the same was 'lever returned to the Registry of the Court and must have, therefore, been delivered in the normal course of mail. The knowledge of the summonses issued in the ordinary course also appears to have been imparted to the defendants as it had come to the notice of the employee of the defendants at their business address who had reported to the Bailiff that defendant No,2 had gone away from Lahore. The summonses issued in the Daily Nawa-i-Waqt a newspaper of wide publication shall also be deemed to have come to the knowledge of the defendants and the mere denial of the defendants having not read the same uncorroborated in any other manner cannot be given any effect.
12. Apart altogether from the above position that defendants have not been able to show any special circumstances which could warrant the recall of the ex parte decree the fact that their application has been filed beyond the period of limitation also establishes the gross negligence of the defendants in prosecuting their cause. It is the established position on record that the notices issued in the ordinary course to the defendants in pursuance of the application of plaintiff under Order XXXIV, Rule 5, C.P.C. Had been received personally by the defendants on 4-12-1986. These notices were delivered both at the business address as well as the residential address of the defendants. The application of defendants CM No,7-B/87 was--filed by them on 13-1-1987, i.e, 39 days after their attaining knowledge of the ex parte decree passed against them. Now according to Article 164 of the Schedule to the Limitation Act, 1908 an application for setting aside ex parte decree can be filed within 30 days from the date of the decree or at best from the date of the knowledge. The application having admittedly been filed on 13-1-1987 i.e, about one year after the passing of the decree and in any case 9 days after the expiry of the period of limitation prescribed by law and no explanation whatsoever having been offered for this belated filing the application is liable to be dismissed on the short ground of having been filed beyond the period of limitation. It is a cardinal principle that if proceedings are taken by a party subsequent to the expiry of period of limitation provided therefor each day's delay in making the application has to be succinctly and very clearly explained before any relief could be sought for by it. As already observed above not only there is no explanation given in the application itself by the defendants for the delay aforementioned but nothing has been canvassed today even which could pursuade me to hold that there exists any bona fide reason for not filing the application within time. The only explanation offered today is that the notice for appearance in Court in pursuance of the application of plaintiff for passing of the final decree having been received for 14-1-1987 the defendants thought that the application could be filed any day before the said date. I am afraid in the face of the admission of the learned counsel for the defendants that defendant No,2 is a literate person such an explanation cannot be accepted as a bona fide cause for not filing the application within time especially when the defendants had also availed of the services of a lawyer.
13. Adverting now to the contention of the learned counsel for the defendants that if the penal interest charged in the suit amount is deducted the suit amount will fall below the jurisdictional value of this Court and, therefore, the decree is liable to be set aside, I may observe that this ground is also not available to the defendants. The learned counsel for the plaintiff has read out from the mortgage deed (original on record) that the defendants had undertaken to pay penal interest in case of their failure to repay the loan as stipulated. That being so, it cannot be said that the charge of penal interest is without agreement. In any case the defendants having not been granted leave to appear and defend the suit cannot be allowed to canvass anything on the merits of the case.
14. In view of the foregoing discussion I see no merit in the application of the defendants (CM No,7- B/87) and accordingly dismiss the same.
CM No,128-B/86
15. The learned counsel for the plaintiff has at this stage submitted that the application of the defendants having been dismissed there is no impediment in the way of passing of the final decree. Nothing has been urged on behalf of the defendants in reply to the above submission of the learned counsel for the plaintiff and otherwise also in the reply to the application of the plaintiff for passing of the final decree (CM No,128-B/86) the defendants have only prayed that no final decree be passed in the suit till the final disposal of the application of the defendants for setting aside the ex parte decree which application has since been dismissed as ordered above.
16. Resultantly the application of the plaintiff CM No,128-B/86 is hereby allowed and the preliminary decree dated 4-2-1986 passed in favour of the plaintiff and against the defendants is hereby made absolute and final. CM No,76-B/88
17. This application had been filed by the plaintiff for restraining the defendants from transferring/selling or alienating the mortgaged property in any manner during the pendency of the proceedings in the matter.
18. Subject to notice for today the defendants were restrained from alienating the mortgaged property in any manner. Since the final decree has been passed in the matter the aforementioned order dated 1-8-1988 passed by my learned brother Khalil-ur-Rahman Khan, J. Is hereby affirmed.