MALIK MUHAMMAD QAYYUM, J. -- This is an application filed by Mr. Waqar Haider Butt defendant No. 5 in the suit for setting aside ex parte decree passed against him on 27.10.1998. The ground urged in support of this application is that the petitioner was resident of 48- Khayaban-e-Janbaz, D.H.A., Karachi but his wrong address was given in the plaint and the notices were sent at the address of the company i.e.. 89-H, Jail Road, Lahore.
2. The application has been resisted by the learned counsel for the plaintiff-decree holder who has argued that the said application is barred by time and secondly that service of notice can be made on a Director by leaving the notice at the registered office of the company and thirdly that the address of defendant No. 5 was correctly given, in this connection learned counsel has stated that earlier a legal notice had been sent by the Bank to the petitioner at the address of the company at Lahore which was received by the petitioner and repay thereto was also sent by his counsel.
3. Having heard the learned counsel for the parties and perused the record I am of the view that this application must succeed. Admittedly no separate address of the petitioner was given in the plaint in which he was shown as resident of 89-H, Jail Road, Lahore which was the registered office of the Company. The fact that the petitioner was residing at Karachi and not at the aforesaid address was well within the knowledge of the Bank inasmuch as the Bank had sent a legal notice to the respondent on 6.12.1997 in reply to which the learned counsel for the petitioner had given the address of the petitioner as that of Karachi. There is no reason as to why in the plaint that address of the petitioner had not been mentioned.
4. Learned counsel for the respondent, however, submitted that the legal notice issued by the legal advisor of the Bank was served upon the petitioner at the same address as has been given in the plaint. Learned counsel for the petitioner has explained that the notice was received at the office of the Mill which forwarded it to the petitioner at Karachi address but the summons were never served on the petitioner at all. From reply of the legal notice it is evident that the plaintiff had the correct address of the petitioner who did not mention the same in the plaint, in these circumstances, there is no option but to hold that the petitioner was not served with the summons.
5. As regards the question of limitation a perusal of Section 12 of the Banking Companies (Recovery of Land, Advances, Credits and Finances) Act, 1997 shows that when the summons are not served the limitation of 21 days would rum from the date of knowledge. The petitioner had sworn an affidavit that he came to know of the decree on 12.12.1998 while this application was filed on 29.12.1998 i.e within the prescribed period of limitation.
6. Accordingly C.M. No. 1/B/98 is allowed and the ex parte decree as against defendant No. 5 is set aside. The said defendant may apply for leave to appear and defend the suit within a period of 21 days from today with an advance copy to the learned counsel for the plaintiff for filing reply.
C.M. No. 40/B/2000 This application has become infructuous in view of the order passed in C.M. No. 1/B/99. Disposed of accordingly.
C.M. No. 24/B/99 This application has been filed under. Section 12 (2) of Code of Civil Procedure by Muhammad Arshad defendant No. 4 seeking setting aside of judgment and decree dated 27.10.1998 passed by this Court in the titled suit.
7. A preliminary objection as to the maintainability of the application has been raised by the learned counsel for, the plaintiff Bank who while relying upon Emirates Bank Limited v. M/s. Osman Brothers (PLD 1998 Karachi 338) has contended that the decree passed by the Banking Court can only be challenged in appeal and by no other method as is obvious from Section 27 of the Act.
Faced with this situation learned counsel for the petitioner has requested that this application be treated as one under Section 12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Even if this request of the learned counsel is granted it would not further his case as he was present when the decree was passed and he cannot claim that he had no knowledge of passing of decree. The decree was passed on 27.10.1998 while this application was moved on 16.1.1999 that is much after the period of limitation of 21 days had expired. This application is, therefore dismissed.
8. To come up on 12.4.2000, for further proceedings.