1. ' C.M.A. No,3951 of 1989 is an application under Order 37, Rule 4, C.P.C.
2. ' Brief facts giving rise to this application are that on 3-5-1989 my learned brother Mr. Justice Mukhtar Junejo dismissed the defendants' application for leave to defend filed by Defendants Nos.1 to 4. It will be useful to reproduce the said order which reads as under:-- "In this summary suit filed under the Banking Companies (Recovery of Loans) Ordinance, 1979, defendants 1 to 4 moved on 19-4-1988 present application for leave to defend. Notice of these applications was given to the plaintiff and they are pending since the date they were filed.
3. ' These applications were fixed for hearing on 30-4-1989 when Counsel for defendants moved an application for adjournment, which was opposed by learned Counsel for the plaintiff. However, last adjournment was granted to learned counsel for the defendants to argue these applications and the matter was adjourned to 3-5-1989.
4. ' Today (3-5-1989) the Advocate for defendants is called absent since morning. It is now 11.30 a.m. I have heard learned counsel for the plaintiff.
5. ' Learned counsel for the plaintiff argued that all the 4 applications moved on 19-4-1988 were time- barred because the defendants were served by publication through Morning News dated 25-3- 1988. In support learned counsel referred to amendment of Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 where the words "and service in any of the aforesaid modes shall be deemed proper and valid service for the purposes of the Ordinance" have been added. Reading together this amendment with the original Rule 8, I am unable to agree with learned counsel for the plaintiff that the Court has to blindly accept the service to be good if such service has been effected through any of the modes given by Rule 8. Rule 8 of Banking Companies (Recovery of Loans) Rules is to be read in juxtaposition with the provisions contained in the Civil Procedure Code relating to service of defendants in summary suits.
6. Moreover the process was sent to the defendants through Bailiff even after the publication dated 25-3-1988. The defendants Nos.2, 3 and 4 were personally served on 10-4-1988. Hence period requiring defendants to apply for leave to defend would commence from 10-4-1988 and consequently I hold these applications to have been filed within the law of limitation.
7. ' However, these applications have not been pursued. Consequently the same are hereby dismissed for non-prosecution.
8. ' As a result of this, suit of the plaintiff is decreed with costs."
9. ' The Defendants' counsel has given the following explanation for his inability to attend the suit:-- "3. That on 3-5-1989 the above suit was fixed for hearing of applications under Order 37, Rule 3, C.P.C. For leave to defend the suit but I was sick and suffering in a case of ACUTE SORE THROAT and therefore, on 35-1989 I could not appear and proceed with the above matter. A medical Certificate is filed herewith.
4. That on 2-5-1989 I sent an application for adjournment to Mr. Sarfraz, the Clerk of Mr. G.M.Qureshy to move it before this Honourable Court in the above case fixed on 3-5-1989 and also I requested Mr. G.M.Qureshy on telephone to attend the above case.
5. That on 3-5-1989 at about 4.00 p.m. Mr. G.M.Qureshy, Advocate informed me on telephone that his clerk Mr. Sarfraz became ill and the application was with him. He after attending his own matter fixed before His Lordhsip Chief Justice, at about 12.30 p.m. Attended the Court of His Lordship Mr. Justice Mukhtiar Ahmad Junejo and he was informed by Bench Clerk that the suit was already adjourned to date in office.
6. That after expiry of the Eid Holidays I made an enquiry about the case from the office of this Honourable Court and found that on 3-5-1989 the application of Defendants under Order 37, Rule 3, C.P.C. For leave to defend the Suit was dismissed for non-prosecution and the suit was decreed ex parte, hence the accompanying application for setting aside ex parte decree dated 3-5-1989 and restoration of the application under Order 37, Rule 3, C.P.C. For leave to defend the suit on its original position."
10. ' It is contended by Mr. Iqbal Kazi and rightly so, that in an application under Order 37, Rule 4, C.P.C.
11. The decree can be set aside only, if the defendant is able to show 'special circumstances' warranting setting aside of the decree. The words 'special circumstances' used in Rule 4 of Order 37, C.P.C. Are higher in degree than the words 'sufficient cause' and 'good cause' shown under the various rules of Order IX, C.P.C. The excuse shown by the Defendants' counsel in the above affidavit cannot be considered as a 'special circumstance', whereupon an application under Rule 4 of Order 37, C.P.C. Can be allowed.
12. ' Reliance was placed on PLD 1984 Kar. 127 Allied Bank of Pakistan Ltd. v. V.C.Khilnani and 2 others wherein my learned brother Mr. Justice Saleem Akhtar observed as follows:-- "Now the question arises in which circumstances the decree can be set aside. This can be done only in 'special circumstances' which have not been defined. However, the words 'special circumstances' will restrict to a great extent the applicability of rule 4. In this regard reference can be made to the provisions of Order IX, Rules 7, 9 and 13 which provide for setting aside the ex parte order/decree. Under. Order IX, Rule 7 if a defendant appears and assigns 'good cause' for his previous nonappearance he may be permitted to appear. Under Rule 9 ex parte order of dismissal of plaint can be set aside on 'sufficient cause' being shown for non-appearance. Under rule 13 again the same words 'sufficient cause', have been used for setting aside an ex parte decree.
13. Under Order XXXVII neither of these words have been used. The words used are 'special circumstances' which seem to be different from 'sufficient' or `good cause' and are comparatively narrower in their applicability. Special circumstances exclude ordinary circumstances or circumstances which may happen every day. They indicate such circumstances which may be rare, exceptional and are not of common occurrence, therefore, heavy burden is cast on the defendants to show that circumstances had arisen which besides being good cause or sufficient cause were of special nature due to which he was unable to appear or fulfil the condition laid down in the order. Putting the defendants' case to test as required by rule 4, I find that no special circumstance has been made out."
14. ' Same and similar view has been taken by a Division Bench consisting of Mr. Justice S. Sajjad Ali Shah (now C.J.) and Mr. Justice Muhammad Mazhar Ali in PLD 1988 Kar. 334, Abdullah Arain v.
15. National Bank of Pakistan, where it was observed that the medical certificate which was issued by an M.B.,B.S. Doctor was undated, only showed that the Defendant had been under treatment of the Doctor since 1984 for serious heart attack and he had been advised complete rest. It was further observed that this certificate did not show that the defendant was in such serious condition that he could not call his counsel to his house for consultation, nor could he speak to him on telephone.
16. Some person from the family could have been sent to enquire from the Advocate about the progress of the case.
17. ' I am, therefore, satisfied that the excuse given by the defendant and the circumstances narrated by him as above do not amount to 'special circumstances', which have to be shown before an application under Order 37, Rule 4, C.P.C. Can be allowed. The fact that the Advocate was suffering from acute sore throat and, therefore, could not appear, can hardly be considered to be a 'good' or `sufficient cause' what to say of 'special circumstances'. I, therefore, do not find any merit in this application and dismiss the same.