1. ' In these suits the essential question is as to what constitutes due service of summons on defendant(s) in a suit under the Banking Companies (Recovery of Loans) Ordinance, 1979 proceeding against such defendant(s) before a Special Court, functioning under such Ordinance.
2. The High Court is one such Court, the above suits have been instituted here and are being dealt with under the said Ordinance. The question arises for the purpose of ascertaining the point of commencement, under Order 37, Rule 3, C.P.C., so as to reckon the period of 10 (ten) days within which, upon service of summons, the defendant must apply for leave to defend. The question has also relevance to application(s) under Order 37, Rule 4, C.P.C. Where under a decree passed under Rule 2 of Order 37 can be sought to be set aside and one of the reasons for so doing may have to be based upon a finding whether or not the summons taken out in the relevant suit can be said to have been duly served. Correspondingly, another question would be as to the applicability of section 5 of the Limitation Act to application(s) under Rule 3 of Order 37, C.P.C. To which application(s) section 5 aforesaid has since been extended but with regard to which a controversy can be whether for an application under the provision last mentioned Article 181 of the Limitation Act is applicable. Having heard the learned counsel appearing in these suits at some length such questions are being decided as matters of principle through this order and it will only subsequently have to come up for examination how the relevant application or applications in each of these suits is/are to be disposed of in the context of the observations made here. The course of action is necessitated because insufficient arguments were addressed at the Bar on matters of detail concerning facts.
3. ' One of the contentions of the learned counsel for the defendants in these proceedings is that, as a general rule, the provisions of the Code of Civil Procedure apply to suits under the Banking Companies (Recovery of Loans) Ordinance, 1979. The question was examined by me in some .Detail in Suits Nos. 48, 49 and 50, all of 1989 and, upon perusal of case-law, including binding dicta of the Supreme Court, it was found that the provisions of the Code, except so far as excluded by the terms of the 1979 Ordinance itself, do apply to suits instituted under the said Ordinance. I am not persuaded to take any different view of the matter in these suits.
4. ' We, therefore, have to see as to how fir with particular reference to service of summons, the provisions of the Code have been excluded by the Ordinance of 1979. On a bare perusal of the statute it is clear that the same is ostensibly silent as regards procedure to effect service on persons drawn into the orbit of the jurisdiction of a Special Court. It is another matter though that because the Code of Civil Procedure largely applies to proceedings in a Special Court the rules in the Code governing service of process also apply to it. On the other hand, section 15 of the Ordinance confers rule-making powers on the Federal Government "for carrying out the purposes" thereof and, in consonance, the Banking Companies (Recovery of Loans) Rules, 1980, have been framed of which Rule 8 as reproduced below has relevance::- "8. Mode of service of summons and notices.---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, and service in any of the aforesaid modes shall be deemed proper and valid Service for the purposes of the Ordinance.
5. (underlining added).
6. ' Prolonged arguments have been advanced from the side of the defendants, urging that the reproduced rule is ultra vires the provisions of the statute itself and is unjust, unreasonable and in negation of the elementary principles of justice and, therefore, void and of no legal effect. In support have been cited Joti Pershad v. Emperor AIR 1921 Lahore 134, Saleh Muhammad v. Traffic Manager, Port Trust, Karachi, PLD 1961 Kar. 349, Abdul Kafil v. Faqir PLD 1962 Peshawar 51, Dad Muhammad Khan v. Bassa, PLD 1965 Lahore 77, Ghulam Zamin v. A.B. Khondkar PLD 1965 Dacca 156, Humayun Khan v. The State PLD 1966 Lahore 287, H.S.0 (Pak.) Ltd. v. Union Council, 1982 SCMR 522; Federation of Pakistan v. Azam All 1985 SCMR 386, Pak Army Furnishing Stores v. All Akbar PLD 1985 Kar. 201, Allied Bank of Pakistan Ltd. v. Tahir Traders PLD 1986 Kar. 369, Cannon Products v. ITO CC Kar., I, 1985 PTD 549, Star Trading Co. Pak. Insurance Corpn. 1987 CLC 61 All Muhammad H. K. Dada v.
7. Sail Corporation PLD 1988 Kar. 279 and Muhammad Ashraf v. Nasreen Begum PLD 1989 Lah. 89 etc. It is, by now, well-settled that rule making power conferred by a statute cannot override the postulates of the statute itself. It is to be confined to the perimeters within which the parent statute has circumscribed its field of operation. The power does not extend to supply omissions or to fill lacunas in the legislation from which it has emanated for being exercised. Even when these requirements of competency are satisfied the end-product namely, the rules framed have to be just, reasonable, in consonance with the law of the land, in accord with public policy and totally free of oppression.
8. ' It, therefore, has to be seen whether rule 8 aforesaid qualifies the tests emerging from the principles short-listed herein above. For so doing, one has to be mindful of the background in which the rule came to be framed. In Ahmad Autos v. Allied Bank of Pakistan Limited PLD 1990 SC 497, Ajmal Mian, J. S speaking for the Supreme Court Bench consisting of himself and Muhammad Afzal Zullah, C.J., succinctly described the historical setting in these words:- "It is a matter of common knowledge that defaulter borrowers in suits brought against them particularly by the financial institutions used to delay the disposal of the suits by avoiding the service of the summons. In order to expedite the disposal of the suits to be brought by the Banking Companies the Ordinance was promulgated, which contains special provisions and which inter alia provide that a suit brought by a Baking Company for the recovery of loan is to be tried in summary manner under Order XXXVII. Section 15 of the Ordinance empowers the Federal Government by a notification in the official Gazette to make rules for carrying out the purposes of the Ordinance. In pursuance whereof the rules have been framed."
9. ' It was also opined in the cited case that proviso 2 inserted in rule 13 of Order 9, C.P.C. By the Law Reforms Ordinance, 1972, reproduced below, has accorded legislative recognition to the problem:-- "Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."
10. ' What is more, there has been a more recent amendment in the Code of Civil Procedure whereby extended modes of substituted service have been introduced by substituting sub-rule (1) of rule 20 of Order 5 and by making insertions in sub-rule (3) of the same rule in the Code. The legislative intention for effecting quick and undeterred service of processes in civil proceedings has thus been made more than amply manifest.
11. ' For the foregoing reasons, the Supreme Court In Re Ahmad Autos has laid down that rule 8 in question neither contravenes anything in Order 37 of the Code of Civil Procedure, nor, generally in the other provisions of such Code.
12. What the Supreme Court, however, has not expressly said, in the referred precedent, is that the rule in question also does not run counter to anything in the Banking Companies (Recovery of Loans)
13. Ordinance, 1979. But that, it seems to me, is implicit in the scheme of things the Ordinance by necessary intendment, has incorporated the relevant provisions of the Code of Civil Procedure in the system of its operation and if there be nothing in the Code which rule 8 has transgressed, there would be little in the body of the Ordinance itself, which can have that effect. It must, therefore, be found that rule 8 ibid conforms to the mandates of the Ordinance. What is more, as observed in the case of Ahmad Autos itself, there is power under section 129 of the Civil Procedure Code for a High Court to amend the First Schedule of that Code and like power, in exercise of rule-making Authority under section 15 of the 1979 Ordinance, can arguably be said to have been invoked by the Federal Government in framing rule 8 and thereby introducing an altered method of its own for effecting service under the parent statute. Thus, being bound by the declaration of law at the level of the Supreme Court, it cannot, accordingly, on any line of reasoning, be allowed to be countenanced that the rule in question is ultra vires of anything contained either in the Banking Companies (Recovery of Loans) Ordinance, 1979, or in the Code of Civil Procedure.
14. ' Even so, while rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980, may have supplanted the various modes of service of summons and notices contemplated by the Code of Civil Procedure, it would amount to going a bit too far to hold that such rule has displaced, irrespective of context, the various procedural requirements envisioned in the Code for effecting service of. Processes falling in its own three separate and distinct categories. Thus the concept of direct, proper and valid service for the purposes of the Ordinance in the rule would, essentially, involve personal service on a defendant or, in given circumstances, on an agent authorised to receive service or on a male adult member of his family or on a person in charge of the defendant's business etc. For all this, recourse must be had to the relevant provisions of the Code but, at the same time, the preclusions envisaged in the Code would equally apply, for instance, a female member, even if adult, cannot be effectively served nor can Rule 15 of Order 5, C.P.C. Be unceremoniously resorted to: Bhomshetti v. Umabai, ILR 21 Bombay 223, Dharam Chand Gain v.
15. Kanak Sarkar, AIR 1921 Cal. 648; Muhammad Ibrahim v. Zecnat 1991 CLC 1967 etc. ' Coming to the second prescribed mode of service through registered acknowledgement due, simultaneously to be resorted to with other forms of service under the rule, there as well the process should be ensured to have been adequately served so as to bring home the necessary knowledge of the proceedings to the person addressed. On the point, my attention has been invited to a comparatively recent pronouncement of my learned brother, G.H. Malik, J., in Emirate Bank International v. Dost Muhammad Cotton Mills Limited, 1993 MLD 54, where section 27 of the General Clauses Act, 1897, was invoked to avail the presumption of effectiveness of service by registered A/D post. I fully agree what such a presumption should arise, once process is properly addressed, pre-paid and despatched by registered post. However, the deeming provision in section 27 would only raise a presumption that service had "been effected at the time at which the letter would be delivered in the ordinary course of post". Still, there would be no presumption that service shall thus also have been effected on the person addressed, the inference only being that such would be deemed to be effected on the person at the time found at the place in the address.
16. Logically, though, if the despatch was properly addressed, the implication would be that it was the addressee or someone on his behalf who received and acknowledged the process and due knowledge could, therefore, be reasonably pinned on the addressee. Yet, to the extent the presumption extends, section 27 of the General Clauses Act itself makes it rebuttable and it would be open to the addressee to show that no real service in actuality was effected and that he did not come to know thereby of the institution and pendency of proceedings against him. Once, however, it is established that the addressee-defendant acknowledged receipt of the postal process there would be little to rebut but often enough, as experience has shown, due to pervading inefficiency, neither the acknowledgement due receipts are returned back nor even the unnerved envelopes made over to the addressor, making it very difficult to draw any positive conclusions: In Re: D'Souza, AIR 1932 All.
17. 374.
18. ' As to service through a newspaper, because rule 8 has provided for such service without any concomitant requisites of previous avoidance or refusal of process by the defendant(s) such is not a prerequisite for holding service by publication good under the said rule. The Supreme Court, in the case of Ahmad Autos, categorically declared the dicta to that effect comprised, inter alia, in Allied Bank of Pakistan Limited v. Tahir Traders PLD 1986 Kar. 369, as having been overtaken by the legislative insertion of the concluding phrase in rule 8, as underlined above.
19. ' At the same time, may it be noted, that the deeming effect of service by publication under Order 5, rule 20, C.P.C. Has always been in place and once a proper publication is made in newspaper, which satisfies the requirements of law, a presumption would arise that due service thereby was effected on the defendant(s). However, for such service to qualify for the necessary presumption the requirement of adequacy of publication sufficient to carry knowledge to the defendant should be met. If not, the presumption may, subject to the facts, give way: Ram Bharose v. Gangah Singh AIR 1931 All. 727 Muhaidin Kader Meers Sahib v. Lakshman, AIR 1931 Mad. 812; Re: A Judgment-Debtor (1936) 2 All. E.R. 767, Korch v. Rossel ET CIE (1937) 1 All. E.R. 725, Janaky Amma v. Bava Kunji AIR 1953 Trave. Co. 101, Sampuran Singh v. Chief Settlement Commissioner AIR 1960 Punjab 153, Zaran Begum v. Saidal Khan PLD 1975 (AJ&K) 122, Bashir Hussain v. Luqman Athar Khan PLD 1979 Note 111 at p.82, Afzal Begum v. Y.M.CA. PLD 1979 SC 18; Muhammad Nasir v. Sadiq Muhammad 1982 CLC 856, M.
20. Yasin Siddiqui v. Muhammad Boota 1983 CLC 1462, Abdul Salam v. Tahira Zaidi, 1984 CLC 2855, Muhammad Anwar v. Abdul Haq 1985 SCMR 1228, Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6, State Life Insurance Corpn. v. Abdul Ghani 1986 MLD 1245, Viqar Bano v. Sher All 1987 MLD 146 Pak. Insurance Corpn. v. Grindlays Bank Ltd. 1987 CLC 2164, Haji Khan v. Government of Sindh 1990 MLD 155, Bank Indosuez v. Jet Travels Ltd. 1991 CLC 534 and Pak-Libya Holding Co. (Pvt.) Ltd. v.
21. Sualeheen S. Piracha 1991 CLC 1146 etc. All the same, even in cases where presumption of effectiveness of service through publication arises, a defendant, upon appearance, may yet show that the published notice did not come to his knowledge for which there could be a number of reasons as spelled out in various pronouncements of the Superior Courts, some of which are included in the citations finding mention in the preceding para. Indeed, if the presumptive element of service by publication was not lifted from Order 5, rule 20, C.P.C., rule 8 aforesaid, standing by itself, would have implied effective personal knowledge through the publication as well, that is to say, in cases where service in the other modes could neither be shown nor presumed.
22. ' Having said as much it must be clearly stated that the object of rule 8 aforesaid is none other than to ensure expeditious disposal of Banking suits. The intendment of the rule is to communicate swift and effective knowledge of the institution of proceedings against persons proceeded with in the jurisdiction of a Special Court. The rule enjoins not only effective personal notice to the defendant but also, where service constructively is to be presumed, in view of the deeming effect in the rule, as inferred from rule 20 of Order 5, C.P.C. It has always to be ensured that the "constructive service" would have been, in all reasonable probability, sufficient to bring the necessary knowledge of the proceedings to the person intended to be served: see discussion at pp. 773-4 In Re: A Judgment- Debtor (supra). The rule of our jurisprudence, which, as of now, also substantially draws upon the Fiqh, is to proceed with Court disputes on merits, allowing, adequate opportunities of defence and never to shut out such opportunities. Law, it has been said time and again, favours disposal upon due hearing and there is little room for mere technicalities in this. All procedure is designed to secure the advancement of justice. It is the end which justifies the means and not vice versa. If, therefore, a defendant, upon appearance is able to show that he had no knowledge of the proceedings instituted against him and that the means adopted to convey due knowledge were inadequate and failed to achieve the purpose for which such means were deployed, he should, irrespective of technicalities, be provided due recourse for defence though, at the same time, ensuring that a cause is neither defeated not prejudiced by an unscrupulous defendant taking undue advantage of any fault in procedure.
23. For these reasons, one would expect that the practice, currently in vogue, of issuing processes in the three modes of service contemplated by rule 8 and thereupon straightaway placing the cases in Court, irrespective of ascertaining whether service was or was not effected, pursuant to summons despatched through bailiff and by registered post and relying solely on publications, should be forthwith departed from. It there is non-appearance and if positive reports of service through bailiff or by registered post are not received at least one more attempt should be made to effect such service through the said two modes and it is only upon failure of such repeat service that the matter be placed in Court for necessary orders. The object is not to negate the effect of publication which should, at any event continue, but merely to forestall all possible controversies in case the deeming effect of publication is, for some reason, subsequently effaced. This, of course, would apply prospectively and then as well in so far as publication is concerned there need be no repetition of it unless the first publication was faulty.
24. ' This brings us to the question touching Order 37, Rule 4, C.P.C. Where under decrees passed in absence may also be sought to be set aside. On the point, I have in detail dilated upon in an order dated 31-5-1989 in Allied Bank of Pakistan Ltd. v. M/s. Hyderabad Hotels, (Suit No,365 of 1984) and still subscribe to the same view.
25. ' Coming to the applicability of Article 1g1 to applications filed under section 5 of the Limitation Act, I respectfully concur with the opinion of my learned brother G.H. Malik, J., in Emirate Bank International v. Dost Muhammad Cotton Mills, 1993 MLD 54, where my learned brother has followed Naeem Finance Limited v. Bashir Ahmad Rafiqi, PLD 1971 SC 8, in preference to M. Imamuddin Junua v. The Thal Development Authority PLD 1972 SC 123, for the reason that the first mentioned precedent was subscribed to by a Bench of three Judges of the Supreme Court whereas the second was authored by two such Hon'ble Judges, Hamoodur Rahman, C.J., being the common factor in both cases. It seems to me that the opinion in the cases of Naeem Finance Limited, with all respect, correctly lays down the law. I have felt free to say so because of an apparent conflict between the said Supreme Court decisions and because, at any event, I am, upon rules of practice, bound by the first mentioned of that number.
26. Article 181 in the First Schedule to the Limitation Act 1908, continues to apply only to applications under the Code of Civil Procedure because the subsequent insertion of matters covered by the Arbitration Act of 1940, unless due intention was expressly made manifest, could not change the original character of Article 181 as that Article stood at the inception of the Act namely, in the year 1908. Further, if we indiscriminately imply residuary periods of limitation for all manner of applications including those under S.5 of the Limitation Act, which provision itself caters to extensions of time in given situations, more likely than not, the exercise may be rendered counterproductive and matters may thereby come to be encountered where the principle in S.5 would itself be exposed to redundancy in virtue of such construction. This is not to say that because Article 181 in the Limitation Act may not extend to applications other than those under the Code of Civil Procedure, the principle of laches also, in the absence of any specific period of limitation, would not be applicable. It would, but what should constitute laches in a given case may remain and indeterminate variable; a matter governed by equity rather than by law.
27. ' Having expressed myself in the foregoing terms, it will now be for the office to lay the above suits for disposal of the miscellaneous matters therein accordingly.