1. ' This is an application, under section 5 of the Limitation Act, 1908, by the defendant No, 3, for condonation of delay filing the application (C.MA. 2929/85) under Order 37, Rule 2, C.P.C., for leave to appear and defend the suit.
2. ' The plaintiff has filed the suit for recovery under the provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979. Upon registration of the plaint, the Additional Registrar, on the 5th August, 1985, ordered issuance of summons to the defendants by bailiff, by registered post and by publication. The summons was, consequently, signed by the Superintendent on the 19th August, 1985, and was published in the 'Morning News' on the 23rd August, 1985. It was served on the defendant No, 3 by the bailiff on the 2nd September, 1985; and, according to the defendant No, 3, by registered post on the 3rd September, 1985 the defendant No,3, filed his application for leave to appear and defend the suit on the 12th September, 1985, and, upon objection being taken at the hearing thereof that it was barred by limitation, has now filed the present application praying that the delay, if any, be condoned.
3. ' Dr. Pervez Hassan, the learned counsel for defendant No, 3, contended that service by publication in "Morning News" was not good service because it was published from Karachi whereas the defendant No, 3 resides at Lahore. He relied on Allied Bank of Pakistan Limited v. Ahmed Autos 1989 M LD 995 and Ahmed Autos v. Allied Bank of Pakistan Limited PLD 1990 SC 497.
4. ' In the Lahore case, the summons was published in "Jang" and the suit was decreed against the defendants because they failed to apply for leave to appear and defend the suit. The defendants then applied, under Order 37, Rule 4, C.P.C. To have the decree set aside on the ground that no proper service, as required by law had been effected and that service by publication was not proper because the summons was published in the daily "Jang" of Lahore whereas the defendant No,2 was at Karachi on the date of publication. Mahboob Ahmed, J. (as fie then was) held, while dismissing the application:- "Again the summons 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."
5. ' The defendants apparently appealed against the above judgment and their appeal was dismissed by a Division Bench of Lahore High Court. On appeal to Supreme Court (PLD 1990 SC 497 (supra) service by publication, under Rule 8 of the Banking Companies (Recovery of Loans) Rules, was challenged on the grounds, inter alia, that such service could not have been held good as the mandatory requirement of Form 4, namely, that the summons should be accompanied by a copy of the plaint, was not complied with. The ground of challenge which was taken before Mahboob Ahmed, J. (as he then was) was evidently abandoned. It was held that the validity of service by publication was not in any way affected by the fact that a copy of the plaint cannot be enclosed for effecting such service. The Supreme Court went on to observe that in that case Rule 8 had been strictly complied with as had been held by the Special Court and cited the passage, reproduced above, from the Lahore case. The learned counsel for defendant No, 3, therefore, contended that the above decision of the Supreme Court is an authority for the opposition canvassed by him.
6. ' It may, however, be noted that the above passage from the Lahore case was cited by the Supreme Court in the context of its ruling that service by publication, under rule 8, was valid notwithstanding the fact that a copy of the plaint could not be annexed as required by Form 4; and it does not appeal that the Supreme Court intended to lay down any rule to the effect that a summons must be published from the place where the defendant resides or works for gain before service by publication can be held to be valid. If such were the rule, no service by publication in any newspaper would be good service unless its place of publication coincides with the place of business or residence of the defendant---A result which is not contemplated by the statute and which, surely; would be contrary to common sense.
7. ' Dr. Pervez Hassan then invited my attention to two unreported orders of my learned brother Wajihuddin Ahmed, J., not so much in support of his proposition but, according to the counsel, as indicating a trend towards it. The first of those orders was passed in Suits Nos. 48, 49 and 50 of 1989 and the second in Suit No, 341 of 1985 and other suits.
8. ' In the first of the above orders, the view expressed was that the term "publication" in Rule 8 was "too broad" and had, therefore, to be subjected to construction, and that, so construed, the result was that (i) publication had to be in the newspaper of the locality where the defendant resides and
(ii) it had to be in a "regular" newspaper. The publication, in that case, in "Leader" -- an evening newspaper published from Karachi -- was, therefore; held to be insufficient. That view, however, does not appear to have been followed in the second order viz. The order in Suit No, 341 of 1985; and it may, in this context, be observed that Mamoon Kazi, J., in Suit No, 920 of 1989 held service by publication in Leader to be good service.
9. ' In the second order, referred to above, observations were made to the effect that--
(i) While rule 8 may have supplanted the various modes of service contemplated by C.P.C., it would be going a bit too far to hold that it has displaced the various "procedural requirements" envisioned in the Code for effecting service in the three separate and distinct modes.
(ii) In view of "deeming effect" of service by publication, as inferred from Order 5, Rule 20, C.P.C.
10. Once a publication, which satisfies the requirements of law, is made, presumption of due service would arise if requirement of adequacy of publication sufficient, in all reasonable probability, to carry knowledge to the defendant is met. "If not, the presumption may, subject to facts, give way."
(iii) If the defendant, upon appearance, is able to show that he had no knowledge of the proceedings and that the means adopted to convey such knowledge were inadequate, he should "be provided due recourse for defence though, at the same time, ensuring that a cause is neither defeated nor prejudiced by an unscrupulous defendant taking advantage of any fault in procedure."
11. ' It appears to me that none of the above observations question the validity of service by publication under rule 8. Indeed such validity has been expressly acknowledged in the order. This conclusion is fortified by the concluding paragraph in the order, which is as follows:-- "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 the summons despatched through bailiff or by registered post and relying solely on publications, should be forthwith departed from. If 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." (Underlining is mine)
12. ' The provisions of Order 5, Rule 20, C.P.C., in the context of service by publication under Rule 8 have been discussed in the case of Emirate Bank International v. Dust Muhammad Cotton Mills (1993 M LD 54) wherein it has been held, at page 67-- " whereas Order 5, rule 20, C.P.C. Provides that substituted service shall be effectual as if the defendant had been personally served, the provision in Rule 8 is that service in any of the three modes prescribed therein 'shall be deemed to be proper and valid service for the purposes of the Ordinance'. The service by publication under Order 5, rule 20, C.P.C., 'is, therefore, on a different footing from such service under Rule 8."
13. ' It will be seen that rule 8 provides for a 'deeming effect' its own. One would, therefore, have thought that there was no scope for a further "deeming effect" to be imported from Order 5, rule 20, C.P.C. In relation to service under Rule 8. As held by Mahboob Ahmed, J. In 1989 M LD 995 (supra):--- "....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 face of it fallacious having, regard to the express language of Rule 8...."
14. It may also be observed that unlike rule 20 of the Order 5, C.P.C., I A Rule 8 makes no reference to personal service.
15. ' In the light of the above and of the decision of the Supreme Court, cited above, I would hold that service by publication under Rule 8 is proper and valid. It is another matter whether for the purposes of condonation of delay or setting aside decree, under Order 37, Rule 4, C.P.C. The circumstances of publication in a given case are relevant.
16. In the present case, the defendant No, 2, having been served by publication on the 23rd August, 1985, was required to apply for leave to appear and defend the suit within ten days from that date.
17. He did not apply within the time prescribed. His application for leave to appear and defend is, therefore, barred by limitation. The question, therefore, whether he has disclosed sufficient grounds for condonation of delay. The ground of which condonation of delay has been sought is that the defendant No, 2 did not subscribe to "Morning News" and was not aware of the publication. It is not his case that the newspaper in question had no circulation in Lahore or that the summons was published in such a newspaper that it could not possibly have come to his notice; and the express averment in the counter-affidavit that "Morning News" was circulated in Lahore has not been denied in the affidavit-in-rejoinder filed by defendant No,
2. Dr. Pervez Hasan himself invited my attention to a paragraph (at page 72) in the Emirate Bank's case (supra) wherein I had held:-- "With regard to the publication of the summons in the 'Morning News', the plea of the defendants is that they do not read the 'Morning News' and, therefore, were not aware of the publication. Service by publication under Rule 8 is valid and effective service and it is not open to the defendants to rely on a plea that they do not read the newspaper in which the summons was published particularly as they all reside in Karachi. If such a plea were accepted, the defendants in suits filed under the provisions of the Ordinance would be enabled to defeat the Ordinance by not making applications for leave to appear and defend the suit within the prescribed time and then simply [asserting] that they do not read a particular newspaper. As observed by Salim Akhtar, J. In United Bank Ltd. v.
18. Messrs Kashmir Corner 1988 CLC 1068: "The object of publication is to see that the filing of the suit is properly and widely circulated. It is not the intention that the defendant should per chance or with certainty may read the newspaper.
19. ' And in the case of Pak-Libya Holding (Pvt.) Ltd. v. Saulaheen Piracha 1991 CLC 1146 the plea that the defendant did not read the 'Morning News' and was, therefore, not aware of the publication of the summons, was not accepted."
20. ' I adhere to the above view and indeed the learned counsel did not even attempt to persuade me to take a different view. He, however, suggested C that the words "particularly as they call reside in Karachi" in the passage indicate that the conclusion in that case might have been different if the defendants there had resided elsewhere. The words in the passage, relied on by the counsel, were, however, not intended to convey that if the newspaper had been published, say, from Lahore instead of Karachi, that would have furnished a ground for condonation of delay. No such argument was advanced in that case and the words in question merely reinforce the weakness of argument of the defendant in that case.
21. ' C.M.A. 5290/92 for condonation of delay in filing C.MA. 2929/85 is, in the circumstances, hereby dismissed. Consequently, C.M.A. 2929/85 is also hereby dismissed as barred by limitation.
22. ' The suit was decreed against all the defendants, except defendants Nos. 3 and 6 on the 1st December, 1993. The defendant No, 6 has died and his legal representatives have not been impleaded; and C.MA. 2929/85 by defendant No, 2 has been dismissed today. The office will, therefore, fix this suit for further orders in Court on the 30th March, 1994.