By this application under Order XXXVII, Rule 4, C.P.C. Defendants seek an order for setting aside the decree in the aforesaid suit passed ex parte on 10-3-1993 for the reason that they were neither served with the summons nor were they aware of the proceedings pending before this Court against them.
2. Plaintiffs filed a suit for recovery of money against the defendants in which in terms of rule 8 of Banking Companies (Recovery of Loans) Rules, 1980 (hereinafter called the Rules, 1980), summons were issued against the defendants by way of publication, through process-server and by registered post. While the summons were duly published in daily "Dawn" dated 16-12-1992 process- server of Lahore, High Court returned the summons with the endorsement that the address given in the summons is wrong, Postal Authorities, however, returned the envelope containing the summons with the endorsement that the premises were locked since long.
3. In support of this application defendants Nos. '2 and 3 being Directors of defendant No. l Company filed their affidavits stating that they were not served in accordance with law; that copy of the plaint)was not supplied to them nor could the same have been supplied as no service under law was effected and without copy of the plaint having been supplied service of summons could not be held good. They maintained that the plaintiff-Company had managed to obtain ex parte judgment and decree from this Court by mispresentation and suppression of material facts.
According to the defendants it was only on 7th June, 1993 when in response to their application for setting aside ex parte order in Suit No.2770 of 1992, plaintiffs filed a counter-affidavit before the Banking Tribunal. They added that they learnt about the aforesaid proceedings through their Advocates. Both the defendants earnestly urged that the plaintiffs did not make any effort to serve them in accordance with law as there was no occasion for them to refuse or to avoid the service of Notices.
4. On the other hand, plaintiffs' attorney Ghulam Mustafa in his counter---affidavit took the stand that as required by rules defendants were duly and properly served and service was held good, whereafter the matter was placed before this Court for hearing. He added that the defendants did not appear and no application for leave to defend was filed. Accordingly, the suit was heard by this court and decreed on 10-3-1993. He further urged that in the absence of an application for leave to defend the suit and after the grant of decree defendants are now not entitled to file the present application which is barred by limitation and liable to be dismissed straightaway.
5. Interestingly, plaintiffs did not care to controvert material facts in the affidavits filed by two Directors of the defendant-Company to the effect that they were neither served in accordance with law nor supplied with a copy of the plaint; that the plaintiffs managed to obtain ex parte decree by misrepresentation and suppression of material facts; that it was only on 7th June, 1993 when for the first time they came to know about the ex parte decree through the counter--- affidavit filed by the plaintiffs in Suit No.2770 of 1992 before the Banking Tribunal and that the plaintiffs did not make any effort to serve them in accordance with law as there was no occasion for them to refuse or to avoid the service of notices. Main emphasis of the plaintiffs in the counter affidavit is on the circumstances that this Court having passed a preliminary decree, dated 10-3- 1993 under Order IX, Rule 13, C.P.C. Since more than 30 days' period has elapsed, preliminary decree cannot be reopened now, present application being barred by law of limitation. To my mind plaintiffs having not contradicted the stand taken by the defendants in their affidavits are deemed to have admitted the facts stated on oath. Their approach is completely untenable and ridiculous on the face of it when they state that during the subsistence of decree application under Order XXXVII, rule 4, C.P.C. Cannot be maintained.
6. Rule 8 of the Rules, 1980 provides three modes of service of summons and notices on a party namely issue of summons and notices to the defendants simultaneously through the bailiff of the Court, by registered post A.D. And by publication. By way of S.R.O. 71(1)/88, dated 31-1-1988 rule 8 was amended by inserting that service in any of the aforesaid modes shall be deemed proper and valid service for the purpose of the Ordinance. There is no cavil with the proposition of law laid down in Ahmed Autos v. Allied Bank of Pakistan Limited (PLD 1990 SC 497) laying down the view that fact that the copy of the plaint cannot be enclosed for effecting service by publication does not in any way affect the validity of service as it is one of the modes of service provided for under Rule 8 Supreme Court further observed that the underlined object of Rule 8 is to avoid the delay, in the service of the summons and, therefore, it has been provided that the summons are to be issued simultaneously in three different modes referred to hereinabove, which is requirement of the above Rule. Obviously, for the reason that if the summon is not served through a Bailiff or by a registered post A.D., it would be served in any case by publication. In other words, the service is to be held good, if a defendant is served by any of the above three modes of service provided for under Rule 8.
7. In the present case it may suffice to point out that the defendant No. l Company is stationed at Lahore and defendants Nos. 2 and 3 being its Directors are also permanently residing at Lahore. In the suit in hand summons sent through District Judge, Lahore were returned with the endorsement of the Bailiff that Room No.305, Al-Faisal Plaza which is the address of the defendants as given in the plaint was locked and on enquiries about it he came to know that this room was presently in occupation of Sadiq Dry Fruit Merchants and that the defendants did not carry on business at this address. Likewise, summons/notices sent by registered post A.D. Were returned back by the postal authorities with the endorsement that office was locked since long. In the wake of aforesaid endorsements publication of summons in daily "Dawn", Karachi cannot be held as sufficient and satisfactory service of summons on the defendants. Real purport, eff8ct and object of Rule 8 of the Rules, 1980 came up for consideration before a Division Bench of this Court in Wahid Ice & Cold Storage Plant v. National Bank of Pakistan (PLD 1996 Kar. 529) in which the view taken was that Rule 8 does not by itself, confer any presumptiveness in service either by post or in the way of publication. For due presumptions to arise recourse to section 3 of the Ordinance, which stipulates that the "provisions of the Ordinance shall be in addition to" and save as provided, "not in derogation of any other law for the time being in force", shall have to be made.
8. Aforesaid discussion brings me to the point whether the present application was filed within time. While Order XXXVII, Rule 4, C.P.C. Does not prescribe any period for making an application for setting aside an ex parte decree, Article 164 of the First Schedule to the Limitation Act provides a period of 30 days for making an application from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. As, I have taken the view that the defendants were not duly served with the summons of the suit in the peculair circumstances of this suit and they came to know about the ex parte decree only on 7-6-1993 they could approach this Court for setting aside the ex parte decree within 30 days which period expired on 7-7-1993 but as the office of the High Court was closed for summer vacations by reason of section 4 of the Limitation Act they were within their rights to file such application on reopening day. In this view of the matter present application filed on reopening day of this Court cannot be held by any stretch of reasoning to have been filed beyond the period prescribed under the Limitation Act.
9. Both the learned counsel referred to the case-law on the point that such application shall be governed by Article 164 and Article 181 respectively of the First Schedule of the Limitation Act but in view of the finding arrived at above, I do not feel inclined to refer the said law on the point.
10. For the aforesaid facts and reasons I am persuaded to hold that there are special circumstances for setting aside the ex parte decree and as the defendants were not duly served with the summons and notices of the suit filed under summary chapter it will only be just fair and proper to set aside the decree. I order accordingly.
11. As to the grant of leave to defend the suit parties' counsel did not advance their submissions in view of hot contest on the merits of the prayer for setting aside the ex parte decree, the application shall now be listed for hearing on this point alone.