MALIK MUHAMMAD QAYYUM, J.---This is an appeal under section 9 of the Banking Tribunals Ordinance, 1984 from the order of the Banking Tribunal dated 10-7-1988 dismissing appellant's application under section 6(5) of the aforesaid Ordinance whereby their prayer for setting aside decree passed against them ex parte was refused.
2. The dispute arises out of a suit for recovery of Rs.8,55,716.50 filed by Messrs Allied Bank Limited respondent No. l herein against the appellants who were sued as principal debtors and respondents Nos.2 and 3 who were arrayed as defendants as guarantors. This suit was filed on 23- 2-1988. On the first date of hearing the Tribunal directed that summons be issued to the defendants in accordance with prescribed procedure through process-server, by post and publication of the proclamation in daily 'Nation'. On 19-4-1988 the Tribunal observed that defendants Nos. 1, 2 and 4 viz. The two appellants and respondent No.4 herein had failed to appear despite service through proclamation and did not file any reply to the show-cause notice within 10 days of the service. They were accordingly proceeded against ex parte. Respondent No.3 had appeared through his counsel and filed the reply which was found to be unsatisfactory, consequently a decree was passed against all the defendants by the Tribunal on 10-7-1988.
3. On 18-7-1988 the appellants moved an application under section 6(5) of the Banking Tribunals Ordinance, 1984 for setting aside the decree alleging that they were not served in the suit and had no notice of its filing and as such ex parte decree be set aside. The application was contested by respondent No. l which led to the framing of the following issues:
(i) Is there any sufficient ground for setting aside the ex parte decree?
(ii) Relief,
4. The parties agreed not to produce any evidence and instead relied upon affidavits submitted by them. The learned Tribunal on 19-3-1989 dismissed the application of the appellants holding that service had been effected on them through registered post as also by publication in the newspaper and as such there was no sufficient cause for setting aside the ex parte decree. Hence this appeal.
5. Kh. Haris Ahmad, Advocate appearing for the appellants has contended that the service of the appellants either through registered post or by proclamation does not stand established inasmuch as neither the acknowledgement of receipt of notices by the appellants was placed on record nor the proclamation in the newspaper was sent to the appellants by post as has been noted by the Tribunal itself. In the submission of the learned counsel, in these circumstances the Tribunal erred in holding that the appellants were duly served. He referred to certain decisions to show that the procedure for service of summons in suits filed under the Banking Tribunals Ordinance, 1984 was different from the mode of service in suits filed under the Banking Companies (Recovery of Loans)
Ordinance, 1979.
6. In reply Mr. Zahid Hamid, learned counsel for respondent No.1 has submitted that the appellants had failed to prove that they were not served through registered post by producing any cogent evidence and in case the appellants were duly served through citation, ex parte decree could not be set aside.
7. Having heard the learned counsel for the parties and perused the record with their assistance we are of the view that this appeal must fail. In the circumstances of the present case, we do not find it necessary to go into the question of difference of mode of service of summons under the Banking Tribunals Ordinance. 1984 and the Banking Companies (Recovery of Loans) Ordinance, 1979 and its effect as we are satisfied that the appellants have failed to prove that the notices issued to them by the Tribunal through registered post had not reached them.
8. True enough there was no acknowledgement of the receipt of the notices by the appellants on the record but the fact that these notices had been despatched through registered post by the Tribunal to the appellants is not only borne out by the postal receipts on the record but is not even disputed by the appellant's learned counsel. It is not the case of the appellants that the addresses to which the notices were despatched through registered post were not those of the appellants. In these circumstances, a presumption that the notices must have reached the appellants arose both under section 27 of the General Clauses Act, 1897 and Article 129 of Qanun-e-Shahadat, 1984.
9. Learned counsel for the appellants is correct in contending that the presumption under the two provisions mentioned above was rebuttable but we are clearly of the view that the appellants have failed to rubt that presumption by producing any cogent evidence.
10. As already noted the parties had agreed before the Tribunal not to produce any evidence and to have the application decided on the basis of the affidavits produced by them. The appellants' affidavit stood rebutted by the respondents by filing a counter-affidavit and as such nothing remained on record on the basis of which it could be held that the presumption about due service l through registered post stood rebutted.
11. Faced with this situation, learned counsel for the appellants attempted to argue that once the appellants had denied the receipt of notices by filing an affidavit the onus shifted on respondent No. l to show that the notices had reached them. We are pot impressed with this contention. As both under section 27 of the General Clauses Act, 1897 and Article 129 of Qanune-e---Shahadat, 1984 the notices are presumed to have reached the appellants, it was for them to produce sufficient proof to rebut this presumption which they failed to do. Section 27 of the General Clauses Act, 1897 uses the expression "unless contrary is proved".
12. We have gone through the affidavit in order to prove the non-service of the process upon them.
It is significant that though the appellants had specifically denied in the affidavit that they had received only notices through the process-server, nothing was said in the affidavit about the receipt of notices through registered post. This omission is not without any meaning. The contents of the affidavit even if taken to be correct do not in any manner improve the appellant's case.
13. Learned counsel for the appellants next objected to the procedure adopted by the Tribunal for disposal of- the application for setting aside the decree by arguing that the appellants should have been allowed an opportunity to lead evidence to prove the everments made in the application, as according to the learned counsel a duty was cast upon the Tribunal to find out whether or not service had been effected in accordance with law. We are surprised by this submission. The Tribunal had framed the relevant issues. The parties themselves stated that they did not wish to produce any evidence but instead would rely upon the affidavits filed by them.
Having themselves agreed to this procedure it does not lie in the mouth of the appellants to raise any objection subsequently.
14. Be that as it may, there are indications on the record to show that the appellants were aware of the proceedings in the suit most important of which being that one of the guarantors of the appellants had admittedly received the process and had also appeared before the Tribunal. As he had been sued as a guarantor and the appellants as principal debtors on receipt of the notice the natural reaction of the guarantor would be to establish contact with the person on whose behalf he had furnished the guarantee.
15. In order to satisfy ourselves about the bona fides of the appellants we have asked, the learned counsel to show us the prejudice that was caused to the appellants on account of ex parte proceedings against them. We also indicated our willingness to examine the defence to the suit itself which according to the appellants, they would have set up if an opportunity was given to them. Learned counsel for the appellants has not been able to render any satisfactory answer and did not dispute the receipt of the loan. From this fact also we are of the view that only intention in filing the application for setting aside ex parte proceedings is to delay the proceedings.